Morgan v. Vogler Law Firm, P.C. et al

Filing 150

MEMORANDUM AND ORDER re: 129 MOTION for Attorney Fees filed by Plaintiff Jesse L. Morgan, 126 MOTION for Attorney Fees filed by Plaintiff Jesse L. Morgan, 139 MOTION to Strike 137 Response to Motion, 138 Supplemental filed by Plaintiff Jesse L. Morgan. IT IS HEREBY ORDERED that plaintiff's motions for attorneys' fees (#126, #129) are GRANTED in part. IT IS FURTHER ORDERED that plaintiff's motion to strike (#139) is denied as moot. IT IS FINA LLY ORDERED that, by December 18, 2018, defendants Vogler Law Firm, Vincent D. Vogler, and Vincent V. Vogler shall pay $39,610 in attorneys' fees and $451.80 in costs to plaintiff's counsel, and defendant Ronald Reynolds shall pay $22,280 in attorneys' fees and $341.80 in costs to plaintiff's counsel. Signed by District Judge Stephen N. Limbaugh, Jr on 12/3/18. (CSG)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

JESSE L. MORGAN,

)
)
Plaintiff,
)
)
vs.
)
)
THE VOGLER LAW FIRM, P.C., et al., )
)
Defendants,
)
)

Case No. 4:15-CV-1654 SNLJ

MEMORANDUM & ORDER
Plaintiff brought this lawsuit against his former landlord Ronald K. Reynolds and
law firm Vogler Law Firm, P.C., and others, that were involved in plaintiff’s eviction and
who filed a collection lawsuit against plaintiff. The Court granted summary judgment to
plaintiff on his Count I for Violations of the Fair Debt Collection Practices Act, 15
U.S.C. § 1692, et seq. (“FDCPA”), against the Vogler Law Firm, Vincent D. Vogler, and
Vincent V. Vogler (“Vogler defendants”), and on Count II for Violations of the Missouri
Merchandising Practices Act, § 407.010 RSMo (“MMPA”) against Ronald Reynolds.
The Court then granted plaintiffs’ motion for statutory damages totaling $3,223.48.
Now plaintiff seeks attorneys’ fees pursuant to the relevant statutes. After an
extended briefing schedule, the motions are ripe for disposition.
The FDCPA requires payment of costs and reasonable attorneys’ fees to a
successful consumer. 15 U.S.C. § 1692k(a)(3). Similarly, the MMPA allows the Court

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discretion to order “reasonable attorney’s fees.” § 407.025.2 RSMo. This Court is
responsible for determining what constitutes “reasonable” fees.
Courts typically use the “lodestar” approach to determine attorneys’ fees,
“multiplying the number of hours reasonably expended on a case by a reasonable hourly
rate for the attorneys working those hours.” See Emmenegger v. Bull Moose Tube Co., 33
F. Supp. 2d 1127, 1137 (E.D. Mo. 1998); see also Tussey v. ABB, Inc., 850 F.3d 951,
961-62 (8th Cir. 2017).
Plaintiff seeks attorneys’ fees and costs as follows:
Party
Vogler defendants

Count
I. FDCPA

Attorneys’ Fees
$62,706

Costs
$451.80

Ronald Reynolds

II. MMPA

$34,297

$341.80

$97,003.00

$793.60

TOTAL

Plaintiff bases those amounts on attorney work records from plaintiff’s attorneys,
Bryan Brody and Alexander Cornwell of Brody & Cornwell, LLC. Brody expended
198.1 hours at an hourly rate of $395, and Cornwell worked 55.3 hours at an hourly rate
of $345. Plaintiff states that he voluntarily wrote off entries on his attorneys’ invoice
going to the Malicious Prosecution claim that was dismissed. Any work that was
attributable to either Count I or Count II was counted against the appropriate defendant,
but work expended on the case as a whole was divided between the Vogler defendants
and defendant Reynolds.
“Congress’ purpose in adopting fee-shifting provisions was to strengthen the
enforcement of selected federal laws by ensuring that private persons seeking to enforce
those laws could retain competent counsel.” City of Burlington v. Dague, 505 U.S. 557,

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568 (1992). “[M]any of the statutes to which Congress attached fee-shifting provisions
typically will generate either no damages or only small recoveries; accordingly, plaintiffs
bringing cases under these statutes cannot offer attorneys a share of a recovery sufficient
to justify a standard contingent-fee arrangement.” Id.
This Court has discretion in making the equitable determination of a proper
attorneys’ fee award. Hensley v. Eckerhart, 461 U.S. 424, 437 (1983). The Court must
consider the degree of success the lawyers obtained for their client as well as the
reasonableness of the number of hours themselves. Id. at 434.
Defendants filed a combined memorandum in opposition to plaintiff’s motion.
Defendants argue that the award plaintiff seeks should be reduced substantially for
several reasons.
1. Hourly Rates
Plaintiff contends that his counsels’ hourly rates of $395 and $345 are in line with
“prevailing market rates in the relevant community.” Blum v. Stenson, 465 U.S. 886, 895
(1984). Defendants counter that rates of $260 and $195 fairly reflects hourly rates for
attorneys of similar experience in this market and would be consistent with prior
decisions in this District. Plaintiff, however, provides support for the reasonableness of
his attorneys’ rates, including the U.S. Consumer Law Survey, the National Law
Journal’s Fee Survey, the Missouri Lawyers Weekly’s Billing Rates, and declarations
from plaintiff’s counsel. This Court has recently approved a $450 hourly rate for a
partner with 29 years of experience and a $300 rate for his associates in a products
liability case. Executive Affiliates, Inc. v. AAF-McQuay, Inc., 4:12-CV-175 CEJ, 2013
WL 6571595, at *3 (E.D. Mo. Dec. 13, 2013). In 2012 and 2013, “the average billing rate

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for partners in St. Louis exceeded $400.00 per hour.” Id. A more recent Western District
of Missouri case found that a $450 hourly rate was appropriate in a FCRA case in which
the Missouri attorney had five years of practice. Stallsworth v. Mars Petcare US Inc.,
2:17-CV-04180-NKL, 2018 WL 2125950, at *4 (W.D. Mo. May 8, 2018). The Court
nonetheless notes that counsel has fewer than five years’ experience in prosecuting
actions like these, and counsel produced no affidavits with information regarding hourly
rates commanded by St. Louis-area attorneys prosecuting FDCPA actions. Based on the
Court’s experience and knowledge of the local market, the Court concludes that a $300
hourly rate will be applied to both attorneys. That rate is reasonable and still well over
than the rates suggested by defendants.
2. Attorney hours
Defendants have several objections to the hours submitted by plaintiff’s counsel.
First, defendants object to counsel recovering attorneys’ fees for administrative work.
Defendants cite to 17.3 hours billed for what it deemed to be administrative work --including preparing summonses, “updating file,” filing documents with the court,
creating a timeline of missed deadlines, calendaring orders, and “Plaintiff’s motion to
stay the case (pending bankruptcy trustee issue).” Plaintiff concedes that 1.1 hours of
defendants’ contested administrative could arguably be administrative: 0.8 hour of
preparing summons and motion for special process service server and 0.3 hour emailing
the process server. However, plaintiff argues that the time counsel expended on
preparing the motion for fees --- which he is not seeking in his motion --- easily exceeds
the full 17.3 hours of contested time entries. The Court disagrees that all but 16.2 hours

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of the time entries objected to by defendants are non-administrative. The Court will
subtract the 17.3 hours from plaintiff’s award.
Second, defendants argue that plaintiff’s attorneys’ hours reflect inefficiencies that
should not be compensated. For example, defendants contend that the hours spent on
opposing defendants’ motion to dismiss (35.1 hours), preparing the motion for summary
judgment (45.3 hours), preparing the motion for summary judgment reply (51.1 hours),
preparing motion for damages (29.7 hours), handling supposedly unrelated bankruptcy
matters (15.2 hours), among others, were excessive. Plaintiff’s counsel maintain that the
time they spent was appropriate and that defendants have been too general in their
objections. Plaintiff contends that his counsel reasonably spent 253.4 hours litigating this
matter.
Because all the allegations in plaintiff’s complaint were admitted by defendants’
failure to answer the complaint, plaintiff’s case was simpler than it might have been.
However, defendants still vigorously opposed the plaintiff’s four separate motions for
summary judgment, which required more work on plaintiff’s part. Even so, the Court
will reduce the hours spent on the summary judgment briefing from 96 hours to 66 hours.
Defendants also caused the bankruptcy matter to reopen briefly, further increasing
plaintiff’s fees. The Court finds that, all in all, the case --- which now has 142 docket
entries --- was unnecessarily protracted by the defendants.
3. Disproportionate to relief obtained
As discussed above, one reason for fee-shifting statutes is that, without such a
statute, the small damages awards from matters like these would make the economics of

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hiring an attorney difficult. See Dague, 505 U.S. at 568. The “disproportionate” nature
of the attorneys’ fees to plaintiff’s recovery here is not a substantial concern.
4. Failure to make pre-suit demand
Defendants finally contend that plaintiff’s counsel increased the cost of litigation
by failing to make a pre-suit settlement demand. Plaintiff points out that defendants
ignored all of his efforts to settle this case, and all but one occurred before the plaintiff
began the summary judgment and damages phases of the case. The Court will give little
weight to this argument by defendants.
***
Subtracting 17.1 hours and 30 hours from the total hours requested by plaintiff
equals 206.3 hours. Multiplying 206.3 hours by $300 per hour equals $61,890. The
Court will apportion the fees according to the ratio that applied to the original, $97,003
total that plaintiff requested. Defendants shall pay to plaintiff’s counsel the amounts
shown below.

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Accordingly,
IT IS HEREBY ORDERED that plaintiff’s motions for attorneys’ fees (#126,
#129) are GRANTED in part.
IT IS FURTHER ORDERED that plaintiff’s motion to strike (#139) is denied as
moot.
IT IS FINALLY ORDERED that, by December 18, 2018, defendants Vogler
Law Firm, Vincent D. Vogler, and Vincent V. Vogler shall pay $39,610 in attorneys’ fees
and $451.80 in costs to plaintiff’s counsel, and defendant Ronald Reynolds shall pay
$22,280 in attorneys’ fees and $341.80 in costs to plaintiff’s counsel.

Dated this 3rd day of December, 2018.
_______________________________
STEPHEN N. LIMBAUGH, JR.
UNITED STATES DISTRICT

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