Price v. Midland Funding LLC et al

Filing 24

AMENDED ORDER re 23 Order on Motion for Attorney Fees, Order on Motion for Leave to File Reply. Amended solely to direct the Clerk of Court to enter judgment. (Written Opinion) Signed by Judge Susan Richard Nelson on 10/19/2018. (SMD)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

Joan Price,

Case No. 18-cv-509 (SRN/SER)
Plaintiff,

v.

AMENDED ORDER

Midland Funding LLC, and
Messerli & Kramer, P.A.,
Defendants.

Darren B. Schwiebert, DBS Law LLC, 301 Fourth Ave. S., Ste. 280N, Minneapolis, MN
55415, for Plaintiff.
Derrick N. Weber and Stephanie Shawn Lamphere, Messerli & Kramer, 3033 Campus
Dr., Ste. 250, Plymouth, MN 55411, for Defendants.

SUSAN RICHARD NELSON, United States District Court Judge
I.

INTRODUCTION
This matter is before the Court on Plaintiff’s Motion for Attorneys’ Fees [Doc.

No. 12] and Plaintiff’s Motion for Leave to File a Reply, or in the Alternative, to Amend
Deadlines Pursuant to Rule 6 (“Plaintiff’s Motion to Amend Deadlines”) [Doc. No. 19].
For the reasons set forth below, the Court grants Plaintiff’s Motion to Amend Deadlines
and finds that Plaintiff is entitled to a total of $6,080 in attorneys’ fees.
II.

BACKGROUND
On February 21, 2018, Plaintiff Joan Price filed this suit against Midland Funding,

LLC, (“Midland”) and Messerli & Kramer, P.A., (“Messerli & Kramer”), under the Fair
1

Debt Collections Practices Act, (“FDCPA”), 15 kuntzU.S.C. § 1692, et seq. Price, who is
disabled and relies on disability income as her sole means of support, alleges that
Midland retained Messerli & Kramer as its counsel to collect on a consumer credit card
debt allegedly owed by Price. (Compl. ¶7 [Doc. No. 1].) Price asserts that both Midland
and Messerli & Kramer are “debt collectors,” as that term is defined under the FDCPA.
(Id. ¶¶ 6–7.) Price alleges that in underlying litigation in 2017, Midland and Messerli &
Kramer served her with a summons and complaint concerning the alleged debt owed to
Midland. (Id. ¶ 9.) She contends that she served a pro se answer, denying the primary
allegations against her. (Id. ¶ 12.)
Price further alleges that in early February 2018, Midland moved for judgment on
the pleadings, attaching to its motion a “true and correct copy” of the “Answer to the
Complaint,” (“Answer”). (Id. ¶¶ 13–18.) In the instant action, however, Price alleges
that this purported Answer, which contained admissions about “a debt” of some kind, had
nothing to do with her. (Id. ¶ 18.)
In addition, Price alleges that Defendants served her with a declaration seeking
costs and disbursements for fees incurred in the underlying action, including
approximately $77 for a “Hearing Fee” and $304 for “Fees of Clerk of Court.” (Id. ¶ 21.)
But in her FDCPA action here, Price contends that these statements were false, as the
underlying action had not been filed as of February 8, 2018, therefore Defendants had not
paid or incurred any filing fees or costs. (Id. ¶ 22.) On February 13, 2018, Defendants
filed the underlying action in Hennepin County District Court, along with their

2

supporting documents and requests, including the purported Answer and declaration
seeking costs and disbursements. (Id. ¶¶ 24–25.)
On February 21, 2018, Price filed the instant action in this Court. Price asserts
that Defendants violated the FDCPA by falsely representing the amount or legal status of
the alleged debt, using false representations and unfair and unconscionable means to
attempt to collect a debt, and attempting to collect an amount not authorized by contract
or law. (Id. ¶ 38.)

Because of these alleged FDCPA violations, Price sought actual

damages, statutory damages up to $1,000, and reasonable attorneys’ fees and costs. (Id. ¶
41) (citing 15 U.S.C. § 1692k(a)(1)–(3).)
On April 10, 2018, Defendants offered Price a total judgment of $1,001, inclusive
of all damages, “plus Plaintiff’s reasonable attorneys’ fees and costs, in an amount to be
agreed upon by all counsel or, alternatively, as determined by the Court,” with respect to
Price’s claims here. (Offer of Judgment ¶ 3 [Doc. No. 10-1].) On April 24, 2018,
Plaintiff filed a Notice of Acceptance of Offer of Judgment [Doc. No. 10], stating that she
accepted Defendants’ offer. With respect to an award of attorneys’ fees and costs, Price’s
Notice stated, “The parties are attempting to reach an agreement on fees and costs, but if
an agreement is not reached, Plaintiff will petition the Court for such an award.” (Notice
of Acceptance at 1.) The Clerk of Court entered judgment in Price’s favor on April 24,
2018 [Doc. No. 11].
Shortly thereafter, Price’s attorney, Darren Schwiebert, requested $4,480 in
attorneys’ fees and costs from Defendants.

(See Defs.’ April 27, 2018 Letter at 1, 3

[Doc. No. 15-2].) On April 27, 2018, Derrick Weber, counsel for Defendants, objected.
3

(Id.) Weber countered with an offer to pay attorneys’ fees of $1,750, reflecting a lower
hourly billing rate than Plaintiff had requested and reduction in billed time. (Id. at 3.)
On May 22, 2018, Schwiebert filed the instant motion for attorneys’ fees.
Plaintiff’s requested total amount of $6,080 includes additional fees for his work in
preparing and submitting the fee petition itself. (See Billing Statement at 1–2 [Doc. No.
15-3].)
III.

DISCUSSION
The FDCPA allows a successful plaintiff to collect “the costs of the action,

together with a reasonable attorneys’ fee as determined by the court.” 15 U.S.C. §
1692k(a)(3). “Fees are still awarded under this rule, even when there is an offer of
judgment under Rule 68.” Ash v. Malacko, No. 14-cv-590 (PJS/JJG), 2014 U.S. Dist.
LEXIS 123493, at *3 (D. Minn. Aug. 18, 2014) (citing Fletcher v. City of Ft. Wayne, 162
F.3d 975, 976–77 (7th Cir. 1998)).
Defendants argue that Plaintiff is not entitled to attorneys’ fees for the following
reasons: (1) the petition is untimely; (2) counsel’s fee agreement is void as a matter of
public policy; and (3) the requested amount of fees is unreasonable. (Defs.’ Opp’n at 3–5
[Doc. No. 17].) However, if the Court decides that a fee award is nevertheless warranted,
Defendants maintain that the award should be no more than $1,500. (Id. at 17.)
A.

Timeliness

A party seeking attorneys’ fees and costs is to required make such a claim under
Rule 54(d) no later than 14 days after the entry of judgment.

Fed. R. Civ. P.

54(d)(2)(B)(i). As noted, judgment in this case was entered on April 24, 2018, and
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Plaintiff filed the instant motion on May 22, 2018. Defendants argue that Plaintiff is not
entitled to an award of attorneys’ fees because the motion was not filed within the 14-day
period under Rule 54(d)(2)(B). (Defs.’ Opp’n at 3–4.) In response to this argument,
Plaintiff moves for permission to file a reply memorandum or, alternatively, to amend the
deadline for filing the fee petition pursuant to Rule 6(b). 1 (Pl.’s Mem. Supp. Mot. to
Amend Deadlines at 1 [Doc. No. 20].)
Here, in the Offer of Judgment, Defendants expressly offered Plaintiff reasonable
attorneys’ fees and costs, to be agreed upon by the parties, or in the event of
disagreement, to be determined by the Court. (Offer of Judgment at 1.) Plaintiff’s
acceptance of Defendants’ offer reflects that understanding. (Notice of Acceptance at 1.)
While Plaintiff argues in the Motion to Amend Deadlines that the Notice of
Acceptance essentially served as a substitute for a motion for attorneys’ fees, the Court
disagrees. Nevertheless, under the circumstances here, granting an after-the-fact
extension is warranted. As the commentators to Rule 54 have noted, the rule does not
require that the motion for attorneys’ fees be accompanied by evidence related to
attorneys’ fees at the time of filing the motion, but that the petitioner file materials
“sufficient to alert the adversary and the court that there is a claim for fees, and the
amount of such fees (or a fair estimate).” Fed. R. Civ. P. 54 1993 Advisory Cmte. Notes,
1

Although Plaintiff’s Motion to Amend Deadlines cites Rule 6(d) as the source of
authority for an extension of time, the Court construes this as a reference to Rule 6(b).
Rule 6(d) refers to three days of additional time after certain kinds of service, which is
inapplicable here. See Fed. R. Civ. P. 6(d). But Rule 6(b) provides that “[w]hen an act
may or must be done within a specified time, the court may, for good cause, extend the
time . . . on motion made after the time has expired if the party failed to act because of
excusable neglect.” Fed. R. Civ. P. 6(b)(1)(B).
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1993 Amendment, Subd. (d), ¶ 2(B). Given that Defendants were not only on notice that
Plaintiff would seek attorneys’ fees, but had expressly agreed to pay reasonable
attorneys’ fees, (see Offer of Judgment at 1), consideration of the merits of Plaintiff’s
request does not prejudice Defendants.

Pursuant to Rule 6(b), the Court therefore

extends the deadline for Plaintiff’s filing to the date of filing, finding that Plaintiff has
demonstrated good cause, in light of the Offer of Judgment and Plaintiff’s Acceptance of
the Offer of Judgment, for consideration of the merits of the fee petition.
B.

Fee Agreement

Defendants also argue that Plaintiff’s fee request should be denied because the fee
agreement between Price and her counsel is “void as a matter of public policy.” (Defs.’
Opp’n at 4.) Defense counsel attests that the fee agreement states, in pertinent part, “You
hereby unequivocally and irrevocably assign to us all right, title, and interest in any
attorneys’ fees recovered or awarded in this case, whether negotiated between the parties
or ordered by the Court.” (Weber Decl. ¶ 8 [Doc. No. 18].) Defendants argue that this
provision violates Minnesota Rule of Professional Conduct 1.8(i), which generally
prohibits a lawyer from obtaining a proprietary interest in a client’s cause of action,
subject to certain exceptions. 2
Minnesota Rule of Professional Conduct 1.8(i) provides:
A lawyer shall not acquire a proprietary interest in the cause of action or
subject matter of litigation the lawyer is conducting for a client, except that
the lawyer may:

2

Defendants cite Minnesota Rule of Professional Conduct 1.8(h)(2)(i), (Defs.’ Opp’n at
4), which appears to contain the language now found in Rule 1.8(i).
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(1) acquire a lien authorized by law to secure the lawyer’s fee
or expenses; and
(2) contract with a client for a reasonable contingent fee in a
civil case.
Minn. R. of Prof’l Conduct 1.8(i) (2018).
The Court finds no violation of this Rule. Here, the language in the fee agreement
reserves counsel’s right to any attorneys’ fees awarded in an action under the FDCPA—a
statute that expressly contemplates an award of reasonable attorneys’ fees to a successful
plaintiff, as discussed above. The reservation in the fee agreement is essentially a right
to a lien or contingent fee that is exempted from Rule 1.8, quoted above. As Plaintiff’s
counsel explains, Price hired him on a contingency-fee basis. (Schwiebert Decl. ¶ 9
[Doc. No. 15].) Therefore, Schwiebert “took the case knowing that [he] risked going
uncompensated for [his] legal work unless [he] obtained an award of attorneys’ fees
either through a victory at summary judgment or trial, a settlement, or an offer of
judgment.” (Id.) In exchange for the reservation of his right to later recover attorneys’
fees from Defendants, he agreed to cover all litigation expenses up front, knowing that he
risked reimbursement for his work if Plaintiff did not obtain a successful result. (Id.)
The language in the fee agreement simply apprised Price that if reasonable fees were
awarded, they would inure to her attorney. This is a far cry from the type of conduct that
the Minnesota Supreme Court has found to constitute an improper pecuniary interest.
See, e.g., In re Dillon, 371 N.W.2d 548 (Minn. 1985) (finding ethical violation where
attorney representing client in a contingency-fee matter borrowed $65,000 from client to
repay a business debt, securing the loan by the attorneys’ contingent fee, and failed to
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disclose the adverse nature of their interests); In re Ray, 368 N.W.2d 924 (Minn. 1985)
(finding ethical violations where attorney used funds in clients’ trust funds for loans and
investments in which the attorney had a substantial personal interest). The Court rejects
this basis for denying Plaintiff’s motion for attorneys’ fees and notes that “every attorney
has an interest in being paid for his services.” Maus v. Toder, 681 F. Supp. 2d 1007, 1016
(D. Minn. 2010).
C.

Reasonableness

“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.” Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). The resulting figure is
known as the “lodestar,” which is strongly presumed to be the proper award. City of
Burlington v. Dague, 505 U.S. 557, 562 (1992). The fee applicant bears the burden of
producing evidence to support the number of hours worked and should make a good faith
effort to exclude hours that are “excessive, redundant, or otherwise unnecessary.”
Hensley, 461 U.S. at 433-34. “Where the documentation of hours is inadequate, the
district court may reduce the award accordingly.” Id. at 433.
As to the reasonableness of his hourly rate, Schwiebert submits a declaration, the
billing statements in this matter, and his curriculum vitae [Doc. No. 15-1]. He attests that
he has practiced law since 1995 and is an attorney in good standing. (Schwiebert Decl. ¶
3.) He further asserts that he is an experienced federal litigator, who has handled over 50
FDCPA claims on behalf of consumers, including a successful appeal to the Eighth
Circuit Court of Appeals.

(Id. ¶¶ 6–8.)
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At the time that he undertook Price’s

representation, Schwiebert agreed to work on a contingency-fee basis, with a billing rate
of $400 per hour. (Id. ¶ 9.) He states that this is his current hourly rate for consumer law
clients, including clients billed by the hour, and is consistent with billing rates for
attorneys with over 20 years of experience. (Id. ¶ 23.)

Schwiebert also notes that in

December 2017, a Hennepin County district court judge issued a fee award order finding
that Schwiebert’s $400 hourly rate was reasonable. (Id. ¶ 24.)
In addition to his own declaration, Schwiebert submits a declaration from Twin
Cities attorney David P. Swenson, of Larkin Hoffman. Swenson, also licensed and in
good standing in Minnesota, states that he has practiced law at other professional law
firms in the Twin Cities, and is familiar with the prevailing norms and practices for
attorneys’ billing fees within the Twin Cities. (Swenson Decl. ¶¶ 5, 8 [Doc. No. 14].) He
has known Schwiebert since 1995, has consulted with him numerous times, and on one
occasion, retained Schwiebert to assist in a collections matter. (Id. ¶¶ 9, 10.) Swenson
states that Schwiebert is a well-regarded federal litigator with specialized experience in
consumer law and the FDCPA. (Id. ¶ 12.) Swenson believes that Schwiebert’s billing
rate of $400 per hour for work performed in one of his areas specialty areas is “on the
low end of the range of reasonable hourly fees charged by lawyers of comparable
experience and expertise.” (Id. ¶ 13.)
In support of his petition, Schwiebert also submits portions of a 2015–16 report by
Ronald L. Burdge (the “Burdge Report”) [Doc. No. 15-4] on attorney billing rates in the
Twin Cities legal market that Defendant Messerli & Kramer filed in opposition to a

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FDCPA fee petition in Kuntz v. Messerli & Kramer, P.A., No. 16-cv-2676 (JNE/BRT),
2017 U.S. Dist. LEXIS 123498 (D. Minn. Aug. 4, 2017).
In opposition to the merits of Plaintiff’s motion, Defendants argue that Plaintiff’s
counsel’s hourly rate is unreasonable, (Defs.’ Opp’n at 9–11), and the number of hours
claimed were neither reasonably expended nor reasonably incurred. (Id. at 12–17.)
1. Hourly Rate
The reasonable hourly rate is the prevailing market rate in the relevant legal
community for similar services by lawyers of comparable skills, experience and
reputation. See Blum v. Stenson, 465 U.S. 886, 895 n.11 (1984). In determining the
reasonable hourly rate, “district courts may rely on their own experience and knowledge
of prevailing market rates.” Hanig v. Lee, 415 F.3d 822, 825 (8th Cir. 2005). The party
seeking a fee award is responsible for providing evidence of hours worked and the rate
claimed. Wheeler v. Mo. Highway & Transp. Comm’n, 348 F.3d 744, 754 (8th Cir.
2003). In determining the reasonable hourly rate for the relevant legal community, courts
typically consider the ordinary rate for similar work in the community in which the case
is litigated. Emery v. Hunt, 272 F.3d 1042, 1048 (8th Cir. 2001).
Defendants argue that Schwiebert’s hourly rate fails to account for his status as a
solo practitioner—and, Defendants argue, a solo practitioner’s lower hourly rate—and
that he has not shown that his $400 hourly rate is comparable to the rates of other Twin
Cities attorneys in FDCPA matters. (Defs.’ Opp’n at 7–10.) Rather, they contend, a
reasonable hourly rate for Plaintiff’s counsel is $300. (Id. at 10–11.)

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The Court is not persuaded that because Schwiebert is a solo practitioner, a lower
reasonably hourly rate should automatically apply. However, because solo practitioners
often lack support staff and may sometimes perform work that could be considered
administrative in nature, the Court will consider Defendants’ specific objections, if any,
to hourly time entries on this basis.
As to the comparability of Schwiebert’s hourly rate to Twin Cities attorneys
performing similar work, in Gupta v. Arrow Financial Services, LLC, No. 09-CV-3313
(SRN/SER), 2012 WL 1060054, at * 1–2 (D. Minn. Mar. 29, 2012), this Court awarded
fees to a local consumer law attorney at counsel’s requested hourly rate of $425.
Defendants distinguish Gupta, however, noting that the case involved intensive
discovery, and the petition was supported by a local attorney’s affidavit that attested to
the reasonableness of the hourly rate. (See Defs.’ April 27, 2018 Letter at 2.)
As in Gupta, Schwiebert’s submission is supported by a declaration from a fellow
attorney in the Twin Cities. Granted, unlike Gupta, 2012 WL 1060054, at *2, this case
did not involve discovery, but Gupta was also decided six years ago, when billing rates
were presumably lower. Moreover, in Gupta, this Court cited other decisions supporting
an hourly billing rate of between $350–450 in consumer law cases. See id. (citing
Poechmann v. Alerus Financial, 10–CV–4186 (SRN/FLN) (D. Minn. Jan. 20, 2012)
[Doc. No. 62] (awarding plaintiff's lead local counsel, who possessed over 40 years’
experience, a $400–450 hourly rate in a class action suit); Phenow v. Johnson, Rodenberg
& Lauinger, PLLP, 10–CV–2113 (DWF/JJK), 2011 WL 710490, at *2 (D. Minn. Mar. 1,
2011) (awarding a $350 hourly rate in an FDCPA case); Wiley v. A & K Auto Sales, 06–
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CV–4611 (DWF/AJB) (D. Minn. Mar. 5, 2010) (awarding a rate of $400 per hour to
plaintiff’s counsel); Hixon v. City of Golden Valley, 06–CV–1549 (RHK/JSM), 2007 WL
4373111, at *2 (D. Minn. Dec. 13, 2007) (awarding plaintiff’s lead attorney a $400
hourly rate).
Nonetheless, Defendants contend that the $350 per hourly rate in Kuntz is “more
on-point” than the approved billing rate in Gupta. (Defs.’ April 27, 2018 Letter at 2.)
While the consumer law attorneys in Kuntz had requested fees at hourly rates of $500 and
$450 per hour, respectively, Judge Ericksen cited the attorneys’ “history of litigation,”
and found that the median hourly rate for consumer law attorneys in Minnesota was
$350. Kuntz, 2017 U.S. Dist. LEXIS 123498, at *6–7. However, the Court in Kuntz
relied upon the 2015–16 Burdge Report’s data concerning “the market average for
Minnesota,” as opposed to the Twin Cities-specific market. See id. at *7. Moreover, as
Schwiebert asserts, even as to Twin Cities-specific billing rates, while the Burdge Report
identified a 2015–16 median hourly rate for all attorneys in Minneapolis of $350, that
rate reflected a median years-in-practice rate of 12.5 years. (Schwiebert Decl. ¶ 33; see
Burdge Report at 265). The Court agrees with Plaintiff’s counsel that while that rate is
appropriate for Twin Cities consumer law attorneys with 12.5 years of experience, more
experienced attorneys command higher billing rates.
The Court finds that the requested hourly rate of $400 is reasonable. Plaintiff’s
counsel has several years of experience in consumer law, and over twenty years of
experience in litigation. Although Defendants argue that only six years of Schwiebert’s
20-plus years of experience is in consumer law, he has handled over 50 FDCPA claims in
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Minnesota, (Schwiebert Decl. ¶ 7), and has been an active litigator throughout his career.
Moreover, the Swenson Declaration attests to Schwiebert’s competence, reputation, and
experience. (See Swenson Decl. ¶¶ 9–13.) Again, the most apposite reference is to rates
charged by consumer law attorneys in the Twin Cities, which, as noted above, have
ranged between $350–450. And although Judge Ericksen did not award the two highly
experienced Twin Cities consumer law attorneys in Kuntz fees at their requested hourly
rates, they both billed at rates higher than the $400 that Plaintiff’s counsel seeks here.
These comparator Twin Cities billing rates lend further support to the reasonableness of
Schwiebert’s billing rate. Moreover, Schwiebert’s hourly rate was deemed reasonable by
a Hennepin County judge in a state court fee award. (Schwiebert Decl. ¶ 24) (citing
Rosario v. Kariel Staging & Décor, Inc., No. 27-cv-16-13140 (Henn. Cnty. Dec. 15, 2017
[Doc. No. 88].)
2. Hours Expended
Defendants also argue that Plaintiff’s counsel’s expended hours are unreasonable
and excessive. 3 They challenge the following expenditures of time: (1) 1.4 hours for

3

As a general matter, Defendants claim that the total hours expended are not
commensurate with fee awards in cases in this District of similar complexity and
duration. (Defs.’ Opp’n at 13) (citing Ash, 2014 U.S. Dist. LEXIS 123493, at *3
(awarding plaintiff’s counsel their requested attorneys’ fees in the amount of $2,475 in an
FDCPA case where debt collector responded to complaint with a Rule 68 offer); Young v.
Am. Credit & Collections, LLC, No. 11-cv-3288 (SRN/JSM), Findings of Fact &
Conclusions of Law [Doc. No. 15] at 5 (D. Minn. Aug. 29, 2012) (awarding attorneys’
fees of $3,322.50 in FDCPA case in which the plaintiff served a complaint and moved for
default judgment); Young v. Diversified Consultants, Inc., 554 F. Supp. 2d 954, 956–57
(D. Minn. 2008) (awarding attorneys’ fees of $3,705.20 in FDCPA case where the
plaintiff served a complaint, participated in a Rule 26(f) conference, and then received a
Rule 68 offer)). While the amount of awards in similar cases is a factor that courts may
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drafting a retainer agreement and an in forma pauperis filing-fee waiver application for
Plaintiff; (2) 1.2 hours spent on a state court case, which they contend is unrelated to this
action; (3) 4.3 hours to accept the Offer of Judgment; (4) non-specific time expended on
clerical and administrative tasks; and (5) 15.2 hours incurred in preparing this petition.
(Defs.’ Opp’n at 12–17.) Additionally, Defendants seek a deduction of 1.5 hours from a
total of 2.6 hours claimed for composing and finalizing the Complaint, arguing that much
of the Complaint consists of text that was merely transposed from documents in the
underlying collection action. (Id. at 15.) Similarly, Defendants argue that 2.5 hours
spent researching, discussing, meeting with Price, and accepting Defendants’ Offer of
Judgment should be reduced by 1.5 hours, to a total of one hour. (Id. at 15–16.) In short,
Defendants assert that Plaintiff’s reasonable attorneys’ fees should be limited to five
hours, and no fees should be awarded for the time expended in preparing the fee petition.
(Id. at 16.)
The Court finds that counsel’s billing entries reflect reasonable work. The time
expended was for necessary tasks, including reviewing the case, analyzing the underlying
state court pleadings filed in Defendants’ state court action against Price and Price’s own
documents, discussing the case with Price, researching the viability of her potential

consider, see Hensley, 461 U.S. at 430 n.3, this precedent is less helpful here, given that
differences in fee awards may be attributable to a variety of factors, including the
presence of unique or unusual facts, the different billing rates of counsel, the passage of
time between older fee award cases and the instant case, and the fact that, due to default
judgment, a fee request is unopposed, see American Credit, Findings of Act &
Conclusions of Law at 5, or that the court awarded the total requested amount, see Ash,
2014 U.S. Dist. LEXIS 123493, at *7–8.
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claims, and drafting the 41-page Complaint and fee-waiver application. (See Schwiebert
Decl. ¶ 16.) The Court therefore declines to make Defendants’ requested deduction for
1.4 hours purportedly spent on drafting a retainer agreement and the filing-fee waiver
application.
Although Defendants challenge 1.2 hours for counsel’s work on an “unrelated
state court case,” (Defs.’ Opp’n at 12), two entries on counsel’s billing statement, totaling
1.2 hours, refer to reviewing documents in a state court action—namely, Defendants’
underlying debt collection action that forms the basis for Plaintiff’s FDCPA claims here.
(See Billing Statement at 1.) The state court action was, in fact, related to this case. And,
Schwiebert attests that the billed time was not for work related to the defense of the state
court case. (Schwiebert Decl. ¶ 15.) The Court finds that this time was reasonably
expended.
Defendants also argue that counsel unreasonably expended 4.3 hours on a
“straightforward Offer of Judgment,” but Schwiebert’s billing statement reveals that this
time was spread over five separate days, in six billing entries, and involved
communication with his client, research concerning the offer and this Court’s decisions
concerning FDCPA fee awards, review of billing information, drafting of a response to
Defendant Messerli & Kramer and a review of its reply, and a review of the language of
the Offer of Judgment.

While Defendants characterize this action as a relatively

straightforward FDCPA case, many of the facts of the underlying collection action are
unusual, such as the allegation concerning the forged Answer and alleged misstatements

15

in a declaration filed with the court. The Court will not deduct 4.3 hours from the fee
award.
Nor will the Court make deductions of 1.5 hours each for time expended in
composing and drafting the Complaint, or for work done in connection with the Offer of
Judgment. This work was necessary and not excessive. Moreover, as Plaintiff’s counsel
notes, because Price suffers from disabilities, counsel was required to be particularly
deliberate and thorough in his client communications.

This time was reasonably

expended.
Defendants further argue that Plaintiff’s counsel billed for clerical and
administrative tasks, but Defendants do not provide specific examples. Schwiebert notes
that he exercised proper billing judgment and reduced the amount of time charged for
certain tasks or to account for redundancy or overlap.

(Schwiebert Decl. ¶ 20.)

Moreover, although a paralegal assisted in the work of Plaintiff’s counsel, he did not
include any paralegal time in the fee request. (Id. ¶ 19.) Based on the Court’s review of
the billing entries, the Court finds no improper billing for clerical and administrative
work.
As noted, Plaintiff seeks reimbursement for the attorneys’ fees incurred in
bringing the instant motion. Such compensation is permissible. See Bankey v. Phillips &
Burns, LLC, No. 07-cv-2200 (DWF/RLE), 2008 WL 2405773, at *3 (D. Minn. June 11,
2008) (including reasonable portion of fees incurred in preparing fee petition in award of
FDCPA attorneys’ fees). However, Defendants challenge this portion of Plaintiff’s fee
request, arguing that Schwiebert rejected Defendants’ initial offer to pay for $1,750 in
16

attorneys’ fees, without providing a counter offer. (Defs.’ Opp’n at 16–17.) Thus, they
assert that the 15.2 hours of time billed in connection with this fee petition was
unnecessarily incurred. (Id.)
In support of their position, Defendants cite Olson v. Messerli & Kramer, P.A.,
No. 07-cv-439 (PJS/RLE), 2008 U.S. Dist. LEXIS 29118, at *8 (D. Minn. April 9, 2009),
in which the Court denied attorneys’ fees incurred in preparing the fee petition. But a
primary basis for the denial of fees in Olson was that during the parties’ fee negotiations,
plaintiff’s counsel had refused to provide opposing counsel with documentation in
support of their claimed fees. Id. That is not the case here, because Schwiebert shared
his billing statement with defense counsel, as Messerli & Kramer’s letter to him reflects.
(See Defs.’ April 27, 2018 Letter at 1) (“Thank you for your Statement of Services
regarding this matter.”) The Court therefore declines to deduct the fees incurred in filing
this fee petition from Plaintiff’s award of attorneys’ fees and finds that the fees were
reasonably incurred.
In conclusion, the Court finds that the lodestar here, reflecting an hourly rate of
$400 per hour, multiplied by 15.2 hours of time, is $6,080. Because the Court finds that
this lodestar amount constitutes a reasonable fee award, see City of Burlington, 505 U.S.
at 562, the Court declines to increase or decrease it. See Hensley, 461 U.S. at 434 (noting
that after determining the lodestar, courts may adjust the fee upward or downward).

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IV.

ORDER

Based on the foregoing, and all the files, records and proceedings herein, IT IS
HEREBY ORDERED THAT:
1. Plaintiff’s Motion for Attorneys’ Fees [Doc. No. 12] is GRANTED;
2. The Court awards Plaintiff attorneys’ fees in the amount of $6,080; and
3. Plaintiff’s Motion for Leave to File a Reply, or in the Alternative, to Amend
Deadlines Pursuant to Rule 6 [Doc. No. 19] is GRANTED.
LET JUDGMENT BE ENTERED ACCORDINGLY.

Dated: October 19, 2018

s/Susan Richard Nelson
SUSAN RICHARD NELSON
United States District Judge

18