Meidal v. Messerli & Kramer, P.A.

Filing 23

ORDER: IT IS HEREBY ORDERED that Plaintiff is entitled to collect attorney's fees in the amount of $4,890. LET JUDGMENT BE ENTERED ACCORDINGLY. (Written Opinion) Signed by The Hon. Paul A. Magnuson on 9/18/2018. (LLM)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Andrew Meidal,

Civ. No. 18-985 (PAM/BRT)
Plaintiff,

v.

MEMORANDUM AND ORDER

Messerli & Kramer, P.A.,
Defendant.

This matter is before the Court on Plaintiff’s Motion for Attorney’s Fees. (Docket
No. 12.) The parties seek a determination of a reasonable fee and number of billable
hours for Plaintiff’s counsel, as allowed under the Order of Judgment (Docket No. 10,
Ex. A) and the Fair Debt Collection Practices Act (“FDCPA”).
BACKGROUND
The factual background of this dispute is brief. In April 2018, Plaintiff filed a
complaint against Defendant, alleging violations of multiple provisions of the FDCPA.
(Docket No. 1.)

Before Defendant filed an answer, it served Plaintiff an Offer of

Judgment, and Plaintiff accepted it. (Docket No. 10.) The Offer of Judgment allowed for
an award of $1,001 plus reasonable attorney’s fees and costs, to be determined by counsel
for both parties or by the Court. (Docket No. 10, Ex. A.) The FDCPA also allows
successful plaintiffs to recover reasonable attorney’s fees and costs, “as determined by
the court.”

15 U.S.C. § 1692k(a)(3).

The parties’ attorneys failed to agree on a

reasonable hourly fee or number of billable hours for Plaintiff’s attorney, Darren Brayer
Schwiebert. According to Schwiebert’s records, he spent a total of 16.3 hours on this

matter, with 6.2 of those hours stemming from this Motion and related memoranda. He
states that his reasonable hourly rate is $400.
DISCUSSION
A.

Reasonable Fee
“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
expended by a reasonable hourly rate.” Morrow v. Weinerman & Assoc., LLC, No. 11cv-104, 2012 WL 1593301, at *1 (D. Minn. May 7, 2012) (Kyle, J.). Courts consider
several factors under the lodestar method to determine the reasonableness of a fee, such
as the time and labor required, the experience of the attorney, the skill required to
perform the legal service properly, and the nature and length of the relationship with the
client. See Hensly v. Eckerhart, 461 U.S. 424, 430 n.3 (1983). Additionally, “the burden
is on the fee applicant to produce satisfactory evidence—in addition to the attorney’s own
affidavits—that the requested rates are in line with those prevailing in the community for
similar services by lawyers of reasonably comparable skill, experience and reputation.”
Blum v. Stenson, 465 U.S. 886, 895 n.11 (1984). Consideration of these factors weighs
against a $400 hourly fee in this case.
First, the time and effort this case required was minimal. Schwiebert achieved a
favorable outcome for his client before an answer was even filed. Further, a search of
Schwiebert’s prior-filed FDCPA cases shows that the Complaint, Motion, Memorandum
in Support, and Declaration were all created from pre-existing documents. (See 18-cv-

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509 (Docket Nos. 1, 13, 15). While Schwiebert changed the factual information in each
document, the format and majority of the content remained the same.
Second, while Schwiebert has been practicing law for over 20 years, the skill
necessary to resolve this matter was minimal, requiring mostly client communication and
the submission of a template complaint. There are certainly some FDCPA matters that
require a great level of experience and skill, but this matter was not one of them.
Finally, the evidence Schwiebert presents fails to show that a $400 hourly rate is
reasonable in this case. Schwiebert cites several cases placing FDCPA work in the $400
per hour range, but those cases either involved a more experienced attorney or required
substantially more litigation than the case at hand. In particular, Schwiebert relies on a
state decision finding his $400 per hour rate to be reasonable. Rosario v. Kariel Staging
& Décor, Inc., No. 27-cv-16-13140 (Minn. Dist. Ct. Dec. 15, 2017). However, that case,
unlike this one, was litigated for well over a year with many more issues handled.
Additionally, Schwiebert has failed to provide sufficient supplementary evidence
supporting a $400 per hour award in a case like this one, as required under Blum. His
own declaration and the declaration of a former co-worker are unpersuasive.

The

“Burdge Report” (Docket No. 15, Ex. 4) lists the median hourly rate for a consumer
lawyer in Minneapolis at $350 per hour, and fails to take into account the simplicity of a
case like this one.
B.

Reasonable Hours
Defendant argues that the hours expended by Schwiebert throughout this matter

are excessive. While Schwiebert did use template documents, he still had to meet with his
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client, edit and revise documents, and communicate with opposing counsel. Schwiebert’s
claimed 16.3 total hours are reasonable.
CONCLUSION
A reasonable hourly rate for this case, considering the lodestar factors, is $300.
Plaintiff’s attorney’s fee request will be adjusted to reflect this rate.
Accordingly, IT IS HEREBY ORDERED that Plaintiff is entitled to collect
attorney’s fees in the amount of $4,890.00.
LET JUDGMENT BE ENTERED ACCORDINGLY.

s/ Paul A. Magnuson

Dated: September 18, 2018

Paul A. Magnuson
United States District Court Judge

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