COHEN v. AMERICAN CREDIT BUREAU, INC.

Filing 32

REPORT AND RECOMMENDATIONS re 22 First MOTION for Attorney Fees on Rule 68 Offer and 15 U.S.C § 1692k(a)(3)First MOTION for Attorney Fees on Rule 68 Offer and 15 U.S.C § 1692k(a)(3) filed by MIRIAM COHEN Objections to R&R due by 3/27/2012. Signed by Magistrate Judge Mark Falk on 3/13/12. (LM, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

Civil Action No. 10-5112 (WJM)

MIRIAM COHEN,
Plaintiff,
v.

REPORT AND RECOMMENDATION
AMERICAN CREDIT BUREAU, INC.,
Defendant.

F ALK, U.S.M.J.

Before the Court is the application of Plaintiff Miriam Cohen’s attorney,
Michael M. Cohen, Esq., for counsel fees pursuant to the Fair Debt Collection
Practices Act, 15 U.S.C. § 1692, et seq. (“FDCPA”). For the reasons stated below,
it is respectfully recommended that Plaintiff be awarded $1,046.75 in attorney’s fees
and $453.00 in costs for a total award of $1,499.75.
Summary
This case is about a single message left on an answering machine attempting
to collect a $150.00 debt. The sole violation of the FDCPA is purely technical—that
the amount of the debt was not mentioned in the telephone message. However, there
were three letters that previously identified the $150 amount of the debt. The merits

of the case were resolved by Plaintiff’s acceptance of an Offer of Judgment for
$1,001.00, one dollar more than the maximum statutory damages recoverable under
the FDCPA. The issue is now attorney’s fees. Plaintiff’s counsel, Michael M.
Cohen, is married to Plaintiff Miriam Cohen. Mr. Cohen claims that he is entitled to
collect $29,210.25 in attorney’s fees. Defendant contends the fee award should be
$348.75.

Background of Fair Debt Fee Disputes
In Weed-Schertzer v. Nudelman, Klemm & Golub, 2011 WL 4436553 (D.N.J.
Sept. 23, 2011), adopted at, 2011 WL 4916309 (D.N.J. Oct. 13, 2011), this Court
expressed certain concerns over the state of Fair Debt attorney’s fee disputes and
indicated that it would further explore the issue in appropriate circumstances.
Specifically, Weed-Schertzer states:

Although the fees in dispute are relatively small, the
integrity of the billing process in small Fair Debt cases is
called into question. Often, the law firms involved on both
sides are the same. This Court has observed that liability
is commonly resolved immediately and the real dispute
presented to the federal court is about legal fees. Deciding
the fee issue can be time consuming, even though the sums
in dispute are often similar to numbers handled by small
claims courts.
Drawing no conclusions here, the
Undersigned believes it bears further observation.
Specifically, whether the practice on the ground is
2

consistent with the intent of the Fair Debt Act.
Id. at *8 (emphasis added).
The Court believes this scrutiny is justified by the increasing number of Fair
Debt cases filed in this Court.1 After Weed-Schertzer, fee requests in Fair Debt cases
have also been commented on in a number of recent opinions in this district. See,
e.g., Conklin v. Pressler & Pressler, 2012 WL 569384 (D.N.J. Feb. 21, 2012); Freid
v. Nat’l Action Fin. Servs., 2011 WL 6934845 (D.N.J. Dec. 29, 2011); Cassagne v.
Law Offices of Weltman, Weinberg & Reis, 2011 WL 5878379 (D.N.J. Nov. 23,
2011); Levy v. Global Credit & Coll. Grp., 2011 WL 5117855 (D.N.J. Oct. 27, 2011).
Although Fair Debt cases may be factually different, they are also similar.
Usually, the real dispute for the federal court to decide is one of attorney’s fees.
Liability is nearly always resolved by settlement or offer of judgment. Most FDCPA
cases never reach the merits. This is a function of the FDCPA $1,000 maximum
statutory penalty per case and the fact that few cases involve actual damages. Thus,
it is not economically sensible for the parties to battle about the merits. Defendants
commonly resort to serving an offer of judgment (or settlement offer) for the

1

The Court inquired into the number of Fair Debt cases filed in each of the past four
years. Jack O’Brien, Esq., Chief Deputy of Court Operations, indicated that there has been
a consistent increase in the number of FDCPA filings from 2008 through 2011. More
specifically, in this district there were 182 FDCPA cases filed in 2008; 238 cases filed in
2009; 364 cases filed in 2010; and 683 cases filed in 2011.
3

maximum statutory damages available, $1,000.00. Plaintiffs have no practical choice
but to accept the offer of judgment, since pressing the case would be meaningless.2
While the $1,000 penalty usually resolves liability, there is a rub. The FDCPA
also provides that a successful plaintiff may recover “reasonable” attorney’s fees (see,
infra, p. 14). This is regarded as part of the penalty enforced by a winning plaintiff
acting as private attorney general. However, the attorneys do not often resolve the
attorney’s fees. Thus, most FDCPA cases really boil down to attorney’s fee disputes.
The FDCPA was not passed in order to sprout a cottage industry for lawyers
who self-interestedly battle over attorney’s fees in federal court. See, e.g., Lee v.
Thomas & Thomas, 109 F.3d 302, 306-07 (6th Cir. 1997) (“Counsel should not wish
to reap financial rewards for prolonging litigation unnecessarily.”). And, in this
Court’s view, judicial economy is an appropriate consideration in addressing these
repetitive, relatively minor fee disputes, especially as FDCPA filings rise and

2

Perhaps this Fair Debt dance is effective and has helped to keep transgressing debt
collectors honest. The FDCPA is an important statute that courts are bound to enforce. This
is especially so in troubled economic times, which could spawn increased abusive debt
collection efforts. Indeed, nothing in this opinion should be read to minimize violations of
the statute nor to condone abusive debt collection efforts, which the Court regards as
repugnant. Similarly, the Court certainly does not intend to demonize legitimate debt
collectors who may have occasionally committed a technical violation of the FDCPA.

4

resources shrink. It is against this backdrop that the current fee dispute is decided.3

*

*

*

Fee Dispute In This Case
In this unique case, Plaintiff’s counsel, Michael M. Cohen, Esq., filed a
complaint on behalf of his wife, Plaintiff Miriam Cohen. Mr. Cohen vaguely pleaded
that Defendant, American Credit Bureau (“Defendant” or “ACB”), committed “at
least fifteen [15] FDCPA violations” many of which occurred during the same
telephone call. (Compl., ¶¶ 9, 16-17.) The 15 supposed violations are mentioned in
the background section of the Complaint; however, Mr. Cohen then attempts to limit
the pleading by seeking “statutory damages for just one” of the at least 15

3

Courts have struggled with the proper balance between compensating counsel and
large fee requests under federal fee shifting statutes. Indeed, more than twenty-five years
ago, four Third Circuit Judges opined: “Both the judiciary and the public increasingly are
becoming concerned that a portion of the legal profession seems to be more interested in the
subject of fees than in performing quality legal services. This perception, if left unchecked
by careful judicial scrutiny, may threaten the viability of the counsel fee statute for legitimate
social ends. The question of disproportionate attorney’s fees is a matter sufficiently serious,
I believe, to command the attention of the entire court.” Cunningham v. City of McKeesport,
753 F.2d 262, 270 (3d Cir. 1985) (Statement by Circuit Judge Adams, Sur Denial of Petition
for Rehearing; Joined by Circuit Judges Hunter III, Weis, and Garth), vacated and remanded
by 478 U.S. 1015 (1986). This issue is magnified in FDCPA cases, where the maximum
statutory penalty is $1,000.00.
5

violations—purporting to save the rest for later. (Compl., ¶ 10) (emphasis added).4
Mr. Cohen’s intention—expressed to the Court, his adversary, and in the papers
submitted on this motion—was to use his wife’s case to “make law.” (Def.’s Ex. 3;
CM/ECF No. 24-4.) Apparently the “law” he sought to make was to establish the
right to bring 14 separate subsequent lawsuits—each one targeting a single one of the
14 alleged violations—even though many of the supposed violations were quite
technical and apparently occurred during the same telephone message and all
involved the same $150 debt.
The Court views Plaintiff’s threat of successive lawsuits for technical
violations of the FDCPA as improper. It is doubtful any Court would sanction such
a blatant multiplication of litigation. According to Plaintiff’s position, if a debt
collector sent one letter that contained ten technical violations of the FDCPA, the

4

Mr. Cohen confirmed this during argument by repeatedly stating he sued for one
specific violation of the FDCPA. (Transcript of Case Management Conference (2/1/12)
(hereinafter cited as “Tr. (2/1/12)”) at 12:20-23 (“THE COURT: [P]laintiff, you pleaded one
violation in your complaint; correct? MR. COHEN: Correct. I pled – I pled one violation
in the complaint.”); 14:11-13 (“THE COURT: So the one – the one violation, what this case
is all about – MR. COHEN: Right.”); 16:17-25 (“THE COURT: That’s the one violation.
There may have been other violations in the same phone call. Is that what you’re saying?
MR. COHEN: Yes, but that’s not – I’m not – that has nothing to do with the merits of the
case. The case is about one violation. THE COURT: One violation and one violation only;
right? MR. COHEN: Correct.”); 19:2-6 (“THE COURT: You’ve made it crystal that the
amount of the debt is what there’s this one violation and that is on the call that was placed
to the plaintiff, they did not state the amount [of] the debt. That what this whole case is
about. MR. COHEN: Correct, Your Honor.”)).
6

victim could theoretically bring 10 separate federal cases to remedy the violation,
each one permitting $1,000 in statutory penalties and mandatory attorney’s fees. It
is no wonder that there is no authority for this inefficient, extravagant position. Yet,
Plaintiff’s counsel persisted with this threat of successive lawsuits for at least six
months, repeatedly rejecting settlement offers for the maximum statutory damages
available—all while Mr. Cohen continued to accrue attorney’s fees by this hollow,
Damocles’ sword threat.5
Eventually, Plaintiff accepted an Offer of Judgment for $1,001.00 plus a
“reasonable” attorney’s fee. The equivalent of this Offer of Judgment was offered
prior to the filing of the Complaint, but Plaintiff waited until her husband accrued
nearly $25,000.00 in attorney’s fees to accept it. Specifically, Defendant offered
5

It could be argued that Defendant shares responsibility for prolonging this case.
Although it made repeated settlement offers comprising the statutory maximum per case
damage amount, it did not serve a formal offer of judgment until March 25, 2011. Had
Defendant filed its Offer of Judgment at the outset of the case, it could have forced the issue
and might have limited the legal fees requested. Defendant has not fully explained its delay
in filing the Offer of Judgment. Settlement offers are not offers of judgment pursuant to
Federal Rule of Civil Procedure 68. Thus, Defendant exposed itself to increased fees and
costs by not offering judgment. Notwithstanding Defendant’s delay in serving a formal offer,
under the unique circumstances present here, the Court is satisfied the fee award should be
limited as set forth herein.
On the other hand, Plaintiff could have cut off all further debt collection efforts by
Defendant much earlier. According to Plaintiff, Defendant’s initial contact was a phone
message on May 12, 2010. Mr. Cohen was retained on June 10, 2010, and charges half an
hour of time on that date. Pursuant to the FDCPA, once a debtor sends a cease and desist
letter to a debt collector, all collection efforts must cease. 15 U.S.C. § 1692c(c). Mr. Cohen
did not send the equivalent of such a letter until August 5, 2010. (Pl.’s Supplemental Letter
dated February 2, 2012, at Ex. A.)
7

$1,500.00 to settle Plaintiff’s claims pre-suit. (Def.’s Ex. 2; CM/ECF No. 24-3.) It
was rejected based on Mr. Cohen’s bluff of successive litigation.
The threatened separate lawsuits were never filed and the one-year statute of
limitations under the FDCPA has expired. All that is left to show for those unasserted
“claims” is nearly $29,000.00 in attorney’s fees that Plaintiff wants to tax against
Defendant.
For the reasons set forth below, this Court believes that Plaintiff’s request for
$29,210.25 in attorney’s fees is unreasonable and contrary to the intent of the Fair
Debt Act.
Factual Background
A.

The Complaint6
The Complaint was filed on October 5, 2010. Plaintiff Miriam Cohen is

represented by her husband, Mr. Cohen. She alleges that she received a phone
message on May 12, 2010, from Defendant attempting to collect a debt, and that
during this initial communication, Defendant failed to disclose certain information
required by the Act, including the amount of the alleged debt. (Compl., ¶¶ 16-17, 26.)
Plaintiff also claims that Defendant subsequently left “numerous messages” on her
6

The description of the events precipitating the filing of this action are taken directly
from Plaintiff’s Complaint. However, as is discussed in Section 2, infra, there are numerous
inconsistences between statements in the Complaint, statements made in the briefing, and
statements on the record.
8

answering machine that did not comply in various ways with the Act’s technical
disclosure requirements. (Compl., ¶ 18.) Finally, Plaintiff states that, in June 2010,
Defendant placed a call to her home and impermissibly spoke with a “third-party,” -her husband and counsel, Mr. Cohen -- about the debt. (Compl., ¶ 20.)
Plaintiff contends that each phone call and/or technical omission constitutes a
separate and independent violation of the Act that can be filed as a stand alone federal
lawsuit. She claims that there are “at least 15” FDCPA violations, but that this case
has been brought to address just one. (Compl., ¶¶ 9-10.) Despite filing this lawsuit
to recover for just one violation, Plaintiff identifies and includes in the pleading the
“non-asserted claims,” presumably making them an issue in the case. (Compl., ¶¶ 1621.)
B.

Procedural History & Settlement Discussions7
A plaintiff may not recover more than $1,000.00 in statutory damages in a Fair

Debt action. See,e.g., 15 U.S.C. § 1692k(a)(2)(A); Goodman v. People’s Bank, 209
Fed. Appx. 111,114 (3d Cir. 2006). On August 25, 2010, prior to the filing of the
Complaint, Defendant offered Plaintiff $1,500.00, to settle all of her FDCPA claims
against Defendant. (Pl.’s Ex. F (8/25/10).) Plaintiff rejected the offer, despite it

7

The parties have extensively referred to their settlement negotiations in the papers
submitted. It is for this reason only the Court repeats the content of their negotiations in this
Report.
9

exceeding the statutory maximum available. She claimed that Defendant was liable
for 10 separate FDCPA violations and, therefore, she was entitled to $1,000.00 in
statutory damages for each violation, in other words $10,000.00 in statutory damages,
as well as attorney’s fees.8 (Def.’s Ex. 1; CM/ECF No. 24-2.) This position was
taken despite Plaintiff’s confounding refusal to include all ten claims in her request
for relief. (Compl., ¶¶ 9-10.) At the time the $1,500 settlement offer was received,
Plaintiff’s counsel had billed a total of 2.65 hours to the file, which equates to
$1,046.75 in attorney’s fees. (Declaration of Michael M. Cohen, Esq. (“Cohen
Decl.”) Ex. F at 1.)9
In January 2011, prior to the scheduling conference and the service of any
discovery, Defendant offered Plaintiff $4,500.00, inclusive of fees and costs, to settle
her FDCPA claims. (Def.’s Ex. 2.) Plaintiff again refused the offer. (Def.’s Ex. 2.)
Instead, Plaintiff said she would accept $4,500 for just the single claim specifically
8

Emails submitted as attachments to the briefs show that Defendant explained to
Plaintiff’s counsel, pre-suit, that the concept of separate lawsuits for each supposed violation
of the Act had no basis in law and was in fact contrary to the existing, relevant authority; the
entire controversy doctrine; and the express language of the FDCPA itself. (Def.’s Ex. 2;
CM/ECF No. 24-3.) Nevertheless, Plaintiff maintained the position, and Plaintiff’s counsel
responded by saying the “reason I filed this case . . . is to make law in this District.” (Def.’s
Ex. 3 at 1; CM/ECF No. 24-4) (emphasis added). As is discussed later, no authority for this
position was provided, and Mr. Cohen has apparently abandoned his attempt to “make law,”
as no further lawsuits have been filed.
9

This refers to time entries from June 10, 2010 through and including August 25,
2010. Multiplying 2.65 hours by Mr. Cohen’s hourly rate of $395.00 results in a total of
$1,046.75.
10

alleged in the Complaint, but would not settle “all her claims” for the value of “just
one claim.” (Def.’s Ex. 3 at 2.)
On February 2, 2011, the Undersigned held an initial scheduling conference
with counsel by telephone. Despite no scheduling order or any discovery served,
Plaintiff’s demand to settle her FDCPA claims was $17,500.00 ($9,500.00 in
attorney’s fees; $8,000.00 in statutory damages). (Affidavit of Richard J. Perr (“Perr
Aff.”) ¶ 1.) On February 14, 2011, again before any discovery had been served in the
case and before the case had really commenced, Defendant offered Plaintiff $5,500.00
to settle her FDCPA claims. (Def.’s Ex. 5; CM/ECF No. 24-6.) Plaintiff again
rejected the offer, claiming somehow that $11,000.00 in attorney’s fees had already
been billed to the case. (Def.’s Ex. 6; CM/ECF No. 24-7.)
Shortly after the initial conference, the parties served discovery. On March 22,
2011, Plaintiff responded to Defendant’s requests. However, she did not produce any
documents and provided unsigned and unverified answers to interrogatories. (Def.’s
Exhs. 9, 10; CM/ECF Nos. 24-10, 24-11.) Despite this, Mr. Cohen’s timesheets
reflect that he billed 9.45 hours and nearly $3,800.00, reviewing the discovery
requests; meeting with his spouse about them in various “office conferences”;10 and
10

Plaintiff and her husband/counsel live at the same address in New Jersey. That
address also doubles as Plaintiff’s counsel’s law office. In other words, it could be said that
“office conferences” on Plaintiff’s billing sheets amount to a husband and wife meeting and
speaking in their own home.
11

preparing responses. (Cohen Decl., Ex. F.)11
C.

Plaintiff’s Acceptance of Defendant’s Offer of Judgment
On March 25, 2011, Defendant served an Offer of Judgment, which states:
1.

Judgment shall be entered in the amount of $1,001.00, as
against Defendant American Credit Bureau, Inc.

2.

In addition, Plaintiff’s reasonable costs and reasonable
attorney fees in connection with the claims against
Defendant in the above-referenced action are to be added
to the judgment; said fees and costs are to be in an amount
as agreed to between counsel for the parties, or if they are
unable to agree, as determined by the Court upon motion;

3.

The judgment entered in accordance with this Offer of
Judgement is to be in total settlement of any and all claims
by Plaintiff in the above captioned case against Defendant
and its current and former employees, owners, and agents,
and said judgment shall have no effect whatsoever except
in settlement of those claims;

4.

This Offer of Judgment is made solely for the purposes
specified in Rule 68, and is not to be construed either as an
admission that Defendant is liable in this action, or that
Plaintiff has suffered any damage. All liability is denied.

(Def.’s Ex. 12; CM/ECF No. 24-13.)
On April 4, 2011, Plaintiff accepted the Offer of Judgment. (Def.’s Ex. 13;
CM/ECF No. 24-14.) The Offer of Judgment was basically offered before the
Complaint was even filed. The “additional” claims that Plaintiff claimed she was
11

This includes time entries dated 2/24/11; 3/1/11; 3/10/11; 3/15/11; 3/19/11; and

3/21/11.
12

entitled to bring—which are the claims pleaded in the Complaint but somehow
withheld for later lawsuits—have never been filed. Since the other claimed violations
all accrued prior to the date of the filing of Plaintiff’s Complaint in October 2010, the
one year statute of limitations applicable to Fair Debt cases has expired. 15 U.S.C.
§ 1692k(d); Peterson v. Portfolio Recovery Assoc., 430 Fed. Appx. 112, 114 (3d Cir.
2011). In other words, Plaintiff actually did settle “all of her FDCPA claims” for the
value of one case—i.e., $1,000.00. Thus, Plaintiff essentially accepted Plaintiff’s presuit initial settlement offer—but waited until $25,000.00 in attorney’s fees accrued.
At the time the Offer of Judgment was accepted, despite little having occurred
in the case, Mr. Cohen claimed that his attorney’s fees were 59.5 hours and
$25,740.50.

(Def.’s Ex. 13; CM/ECF No. 24-14.)

On May 18, 2011, the

Undersigned held an in-person settlement conference in an attempt to resolve the
attorney’s fee issue but was unsuccessful.
On September 27, 2011, Plaintiff’s counsel was directed to file the accepted
Offer of Judgment on the docket and proceed with his fee petition. Plaintiff took no
action for a month. As a result, the Undersigned issued an Order on October 27,
2011, directing Plaintiff’s counsel to file the accepted Offer of Judgment by
November 1, 2011, and his fee petition by November 7, 2011, and stating that failure
to comply would result in termination of the case. (CM/ECF No. 17.) With a court-

13

authorized extension, Plaintiff filed the Offer of Judgment on November 7, 2011.
(CM/ECF No. 21.)
On November 14, 2011, Plaintiff filed the present motion for fees and costs,
seeking $24,667.50 attorney’s fees (which has been increased12) for 62.45 hours
billed at $390.0013 per hour. (Pl.’s Br. 15.) Plaintiff also requests $453.00 in costs.
The motion was strongly opposed.
Attorney’s Fees Pursuant to the FDCPA
The FDCPA provides that “in a case of any successful action,” a prevailing
party may recover, “the costs of the action, together with a reasonable attorney’s fee
as determined by the court.” 15 U.S.C. § 1692k(a)(3). An award of reasonable
attorney’s fees and costs to a prevailing plaintiff in a FDCPA case is usually required.
See Graziano v. Harrison, 950 F.2d 107, 113-14 (3d Cir. 1991). However, an award
of fees is not required in “unusual circumstances,” such as “bad faith” conduct on the

12

The Court held focused argument by telephone on February 1, 2012. The parties
were directed to submit supplemental letters addressing glaring omissions from the briefs
submitted. Mr. Cohen increased his fee request to $29,210.25 to account for activity
occurring after the fee petition was filed, including, apparently, responding to the various
inconsistences and inaccuracies raised by his pleadings (see, infra, pp. 20-24).
13

Mr. Cohen’s math does not add up. A total of 62.45 hours billed at $390.00 per
hour equals $24,355.50, not the $24,667.50 he initially requested. It appears that Mr. Cohen
reached the $24,667.50 by using an hourly rate of $395.00, which is the rate used on his
billing sheets—but not in his fee petition. The Court will use the rate of $395.00, giving Mr.
Cohen the benefit of the doubt.
14

part of a prevailing plaintiff. Id. at 114 & n.13 (“The presence of bad faith conduct
on the part of a plaintiff would surely be an unusual circumstance justifying a denial
of attorney’s fees.” (citing DeJesus v. Banco Popular de Puerto Rico, 918 F.2d 232,
234 n.4 (1st Cir. 1990))).
If an attorney’s fee award is appropriate, the barometer for the quantum of the
award is “reasonableness.” A “reasonable” fee award is one that is “adequate to
attract competent counsel, but which does not produce a windfall to attorneys.”
Public Interest Research Group of NJ, Inc. v. Windall, 51 F.3d 1179, 1185 (3d Cir.
1995). A reasonable fee is generally calculated by application of the lodestar method,
which requires multiplying the hours reasonably expended by a reasonable hourly
rate. See, e.g., Hensley v. Eckerhart, 461 U.S. 424, 433-37 (1983); Maldonado v.
Houstoun, 256 F.3d 181, 184 (3d Cir. 2001). While the lodestar is generally
presumed to yield a reasonable fee, Washington v. Pa. County Court of Common
Pleas, 89 F.3d 1031, 1035 (3d Cir. 1996), the lodestar may be adjusted based upon
numerous factors, including, for example, the time spent and labor required; the
novelty and difficulty of the legal issues; the customary fee in the community;
whether the fee is fixed or contingent; the nature and length of the professional
relationship with the client; and awards in similar cases. See, e.g., Windall, 51 F.3d
at 1185 n.8 (citing Johnson v. Ga. Highway Express, Inc., 488 F.2d 714 (5th Cir.
15

1974)). Perhaps the most important factor in determining the fee request is the degree
of success obtained. See Farrar v. Hobby, 506 U.S. 103, 114 (1992). Yet, in settling
on an appropriate fee, “[t]here is no precise rule or formula for making . . .
determinations. The district court may attempt to identify specific hours that should
be eliminated, or it may simply reduce the award to account for . . . limited success.”
Thompson v. Wolpoff & Abramson, 312 Fed. Appx. 161, 164 (11th Cir. 2008) (citing
Hensley, 461 U.S. at 436-37).
The Fair Debt Act does not mandate a fee award in the lodestar amount. See,
e.g., Giovanni v. Bidna & Keys, 255 Fed. Appx. 124, 125 (9th Cir. 2007); Carroll v.
Wolpoff &Abramson, 53 F.3d 626, 628-29 (4th Cir. 1995).14 For as one court has
noted:
If the concept of discretion is to have any meaning at all, it
must encompass the ability to depart from the lodestar in
appropriate circumstances. Hensley itself recognized that,
in certain circumstances, an award in the lodestar amount
may be excessive.
Carroll, 53 F.3d at 628-29. In other words, rote application of the lodestar method
must be tempered by the overriding principle of “reasonableness,” which by necessity
must account for “the facts and circumstances of the underlying litigation.” Id. This

14

See also Jerman v. Carlisle, McNellie, Rini Kramer & Ulrich, 130 S. Ct. 1605, 1621
n. 16 (2011) (noting that “Many” not all “District Courts apply a lodestar method . . .”).
16

is consistent with the reality that the district court “has a ringside view of the relevant
conduct of the parties and of the underlying legal dispute.” Id. (quoting Alexander
v. Mayor & Council of Cheverly Mass., 953 F.2d 160, 162 (4th Cir. 1992)). Thus,
inevitably, the district court “will engage in a fair amount of ‘judgment calling’ based
upon its experience with the case and the general experience as to how much a case
requires.” Evans v. Port Auth. of N.Y. & N.J., 273 F.3d 346, 362 (3d Cir. 2001). In
other words, the district court managing the case is in the best position “to evaluate
the quality and value of the attorney’s efforts” when calculating a reasonable fee,
Ballard v. Schweiker, 724 F.2d 1094, 1098 (4th Cir. 1984), and therefore, “retains a
great deal of discretion in deciding what a reasonable fee award is.” Bell v. United
Princeton Prop., 884 F.2d 713, 721 (3d Cir. 1989). Such broad discretion is necessary
in order to dissuade counsel from the “propensity . . .to engage in secondary or
satellite litigation” over attorney’s fees. Hensley, 461 U.S. at 433-37.
Discussion
Plaintiff has requested $29,210.25 in attorney’s fees for this lightly litigated
case. Defendant counters that Mr. Cohen has prolonged the litigation intentionally
and that he is entitled to $348.75.
This case presents an unusual circumstance that does not warrant the award of
the large attorney fee requested. The reasons for a reduced award are: (1) Plaintiff
17

unreasonably prolonged this litigation by brandishing an unsupported legal theory
that she could bring as many as 15 federal lawsuits, one after another, all arising out
of the same transaction and $150 debt; (2) Plaintiff’s threat of successive lawsuits
borders on bad faith, since it was without authority and abandoned; (3) the claim that
was actually brought in this case was extremely basic and resolved by an offer of
judgment that was essentially proposed prior to the filing of the Complaint; (4)
Plaintiff’s Complaint and fee petition in this case contain numerous inconsistencies
that leave the Court unsure of what really occurred in the case; (5) Plaintiff was
unsuccessful, and thus not a prevailing plaintiff, on her claim for actual damages
pleaded in the Complaint; (6) Mr. Cohen was unsuccessful in his express intention
of filing this case to “change the law in this district” (see Def.’s Ex. 3) ; and (7) it is
doubtful that Plaintiff and her husband/counsel were engaged in a legitimate, paying,
arms-length attorney-client relationship.
The Court will award Plaintiff $1,046.75 in attorney’s fees. This amount is
equal to the full amount of attorney’s fees billed by Mr. Cohen prior to the filing of
the Complaint.15 The Court believes this fee is appropriate as a matter of general
reasonableness and separately as a consequence of the application of the lodestar

15

As is explained infra, the award is based on the full amount of Plaintiff’s counsel’s
billed hours (2.65) at that time of the pre-suit settlement offer multiplied by Mr. Cohen’s
suggested rate ($395.00).
18

method.
1.

Plaintiff’s Complaint Presented A Basic Claim

Plaintiff’s case is the most basic of Fair Debt cases. In short, Plaintiff alleges
that she received a telephone message during which Defendant did not identify the
amount of the alleged debt. (Compl., ¶ 26.) But she clearly knew the debt was
$150.00 from prior collection letters. That is the whole case. When evaluating fee
requests, the difficulty or novelty of the claims is a factor to consider. See, e.g.,
Windall, 51 F.3d at 1185 n.8. Here, there were no novel issues of law. Nothing
complex was present in the Complaint. The value of Mr. Cohen’s services were
limited. Yet, counsel claims to have spent almost 60 hours litigating this case for six
months.
2.

The Pleadings and Moving Papers Raise Many Inconsistences

In support of his fee request, Mr. Cohen implied that he is an expert in Fair
Debt litigation and claims that he “single-handedly” “created” the “most important
precedential ruling in the last twenty five years of FDCPA litigation,” which “many
commentators have written . .. has changed the face of debt collection in the United
States forever.” (Declaration of Michael M. Cohen, Esq., ¶¶ 6-8.)16

16

The “precedent” Mr. Cohen references is Foti v. NCO Fin. Sys., Inc., 424 F. Supp.
2d 643 (S.D.N.Y. 2006).
19

Despite this experience, the pleadings and briefs are rife with unexplained
inconsistences. Simply put, the Court is not sure what Plaintiff was actually alleging
and questions whether Mr. Cohen himself knew.
The Court understands that everyone makes mistakes.

However, the

inconsistency of counsel in litigating a case and pursuing a fee petition is a pertinent
consideration in setting a reasonable attorney’s fee. See, e.g., McKenna v. City of
Philadelphia, 2008 WL 4435939 (E.D. Pa. Sept. 30, 2008). Thus, in an effort to
obtain clarification of certain confusing allegations, the Court held a conference on
February 1, 2012, and then directed the parties to submit supplemental letters. A
sample of the problems are set forth below.
•

The Complaint in this case contends that “initial communication” that
gives rise to Plaintiff’s sole claim was a telephone message received on
May 12, 2010. (Compl., ¶¶ 16-17, 26.) However, it seems, there was no
telephone message from Defendant left on May 12, 2010. In fact, there
were no phone calls from Defendant to Plaintiff until mid-June 2010,
which both parties now concede. (See Plaintiff’s Supplemental Letter
dated 2/2/12 (“Pl.’s Supp. Ltr.”) [CM/ECF No. 30] at 1(referring to
“June 30, 2010” phone call) & Ex. B; see also Defendant’s
Supplemental Letter dated 2/3/12 (“Def.’s Supp. Ltr.”) at 1.)

•

When Plaintiff’s counsel was asked the amount of the debt, which was
not pleaded and comprised the sole allegation in the case, Plaintiff’s
counsel stated that “I believe it was approximately a thousand dollars.”
(Tr. (2/1/12) at 2:20-21.) Mr. Cohen now concedes that the debt was
$150.00. (Pl.’s Supp. Ltr. 1; Def.’s Supp. Ltr. 1, ¶ 2.) Moreover, the
amount of the $150.00 debt was clearly stated on three collection letters
sent to Plaintiff prior to the filing of the Complaint. (See Def.’s Supp.
Ltr., at pp. 3-5.)
20

•

Mr. Cohen represented to the Court that he never pleaded a claim for
actual damages in this case. This is not so. See the following colloquy:
MR. COHEN:

THE COURT:
MR. COHEN:

THE COURT:

MR. COHEN:
THE COURT:

Your Honor, first of all, I never pled
anything about actual damages in this
case. I didn’t settle the actual damages
–
Well —
for nothing. I – may have preserved it
for a distinct action, which I believe
under the case law that I cited – and
again –
[. . .] But, frankly, in your complaint,
you – you do – you asked very . . . in
paragraph 28, you refer to actual
damages, and that you say as a result of
the following, ACB and its employees
and agents [are] liable to plaintiff for
actual damages in an amount to be
determined at trial.
So you did plead actual damages, I
guess. You did plead actual damages.
I mean it’s – to say that you didn’t plead
actual damages is just not – I mean you
pleaded it under Rule 11 . .. in a
pleading to the Court.
...
Correct, Your Honor.
Right.

(Tr. (2/1/12) at 24:8-25:8); (see also Compl., ¶ 28(a); page 30, infra).
•

The Court asked Mr. Cohen how many collection phone calls were
placed by ACB to Plaintiff where there were individuals on both ends
of the phone line. In other words, did Plaintiff or Mr. Cohen speak to
a representative of ACB during the debt collection effort. Mr. Cohen
stated that there were “at least two” and that he “believed there were
21

two.” (Tr. (2/1/12) at 7:3-16.) When Mr. Cohen was questioned
whether Plaintiff herself ever spoke with ACB representatives, Mr.
Cohen stated very clearly that there were two phone calls—on one, Mr.
Cohen spoke with an ACB representative; on the other, Mr. Cohen
stated that Plaintiff spoke with an ACB representative. (Tr. (2/1/12) at
7:17-19.) These calls were apparently so traumatic that Plaintiff was
“really shook up . . and could not sleep at night.” (Cohen Decl., ¶ 17).
Mrs. Cohen also supposedly was so fearful “that the debt collector might
come and get her,” that she “was initially hesitant to file the action.”
(Cohen Decl., ¶ 18.) Yet, as it turns out, according to Defendant’s
records (and unresponded to by Mr. Cohen), Plaintiff herself never
spoke with any of Defendant’s representatives. Rather, the only live
contact with any of Defendant’s agents was a single inbound phone call
placed by Mr. Cohen to Defendant.17 Thus, contrary to Mr. Cohen’s
representations, it appears that Plaintiff herself never spoke with an
ACB representative, and the only live phone communication between
the Cohens and ACB was when Mr. Cohen reached out and placed an
inbound phone call to ACB.18
•

Mr. Cohen declares that he made his “initial contact with ACB on
August 5, 2010, notifying them that I represented the Plaintiff . . . .”
(Cohen Decl., ¶ 24.) However, this also appears to be inconsistent,
because Plaintiff also pleaded in the Complaint that the debt was
improperly discussed with him as a third-party on June 30, 2010.
(Compl., ¶ 20.) Defendant states that the only contact with Mr. Cohen
during the debt collection was an inbound phone call placed on July 5,
2010. (Def.’s Supp. Ltr. ¶¶ 7, 16.)

•

Mr. Cohen has taken different positions on why he filed this case. Mr.
Cohen at one point claimed that he “undertook to litigate this case

17

To support Plaintiff’s supposed fears, Mr. Cohen cites to the “Declaration” of his
wife, Plaintiff Miriam Cohen. (Pl.’s Br. 3.) However, no declaration from Miriam Cohen
was ever submitted.
18

Had this case progressed, it is quite possible that Mr. Cohen may have become a
conflicted lawyer/witness—particularly because he included his conversation with ACB in
the allegations of the Complaint. (Compl., ¶ 20.)
22

because the Plaintiff reported to me that she was scared of the Defendant
. . . .” (Cohen Decl., ¶ 16.) Yet, in emails with ACB, Mr. Cohen
revealed that “[t]he fact is, the reason I filed this case is the same as why
I filed Foti, to make law in this district.” (Def.’s Opp’n Ex. 3)
(emphases added).
The Court could go on. However, the point is that the allegations were
needlessly murky.
3.

The Litigation was Unreasonably Prolonged By Plaintiff’s
Assertion of A Baseless Legal Theory

Having case managed this case from its inception, the Undersigned believes
that Plaintiff’s counsel unreasonably pursued meritless legal theories, performed
irrelevant legal research, and demanded monetary settlements well beyond the
maximum amount that Plaintiff could recover if she won the case.
All of the allegedly violative debt collecting activity in this case, “at least 15”
supposed violations, occurred prior to the filing of the Complaint. Yet, Plaintiff filed
the present Complaint specifically referring to the 15 violations but seeking to
recover for only one of the violations—while demanding the value of at least ten
lawsuits to settle. The Complaint states:
9.

Plaintiff believes that [Defendant] has committed at
least fifteen FDCPA violations.

10.

This action is to recover statutory damages for just
one of the multiple violations committed by
[Defendant]

23

(Compl., ¶¶ 9-10.)
The Complaint was structured in this way so that Plaintiff could attempt to file,
or at least use as settlement leverage, multiple subsequent lawsuits and bypass the
clearly established law limiting to $1,000.00 the statutory maximum amount
recoverable per action under the FDCPA. See, e.g., Goodman v. People’s Bank, 209
Fed. Appx. 111,114 (3d Cir. 2006) (Fair Debt Act limits “statutory damages to $1,000
per successful court action.”); Wright v. Fin. Serv. of Norwalk, Inc., 22 F.3d 647,
650-51 (6th Cir. 1994) (en banc) (“Congress certainly knows how to write statutes
that make each separate violation subject to a separate penalty, or even that make
each separate day of a violation a separate offense subject to a separate penalty. There
is no such intimation, however, anywhere in the actual language of 15 U.S.C. §
1692(k)(a)(2)(A), elsewhere in the act, or in any of the surrounding legislative
history.”); Harper v. Better Bus. Servs., Inc., 961 F.2d 1561, 1563 (11th Cir. 1992)
(“The FDCPA on its face does not authorize additional statutory damages of $1,000
per violation of the statute, of $1,000 per improper communication, or of $1,000 per
alleged debt. If Congress had intended such limitations, it could have used that
terminology.”).
Plaintiff was required to join in her Complaint any and all pre-suit violations
of the Act she contends were committed by Defendant in attempting to collect on the

24

single debt. It would be contrary to well-settled law—as well as logic—to permit a
plaintiff to identify numerous alleged violations, but bring them in successive federal
lawsuits one at a time.
First, the statutory language of the FDCPA itself rejects Plaintiff’s position,
something Defendant made Mr. Cohen aware of prior to the filing of the Complaint.
More specifically, Section 1692k(b)(1) of the Act specifically addresses the
procedure when more than one violation has occurred in a single debt collection
effort. That Section provides that, in an action brought by an individual, the Court,
in settling on an amount of statutory damages to award, should consider, among other
things, “the frequency and persistence of noncompliance by the debt collector.” Id.
The use of “frequency” and “persistence of noncompliance” in the language of the
statute is clearly an expression that Congress envisioned that in lawsuits brought
under the FDCPA, all offending acts would be brought in a single court action, and
the volume of “noncompliance” -- in other words, the number of violations -- would
be a factor is assessing damages. Id.; Crossley v. Lieberman, 868 F.2d 566, 572 (3d
Cir. 1989) (statutory damages are determined “by such factors as the frequency and
persistence of noncompliance by the debt collector.”).
Plaintiff is incorrect in her suggestion that a technical violation of the Act
mandates an automatic award of $1,000.00. Indeed, even when a Plaintiff is entirely
25

successful and prevails on a technical violation, statutory damage awards are
routinely well below the statutory maximum. See, e.g., Pipiles v. Credit Bureau of
Lockport, 886 F.2d 22, 28 (2d Cir. 1989) (declining to award any statutory damages
when violation was technical and unintentional); Weiss v. Zwicker & Assoc., 664 F.
Supp. 2d 214, 218 (E.D.N.Y. 2009) (awarding $500.00 in statutory damages when
violation was technical failure to provide amount of alleged debt). Thus, it is the
severity and persistence of the conduct that results in an increase of the statutory
award to the $1,000.00 maximum. See, e.g., Crossley, 868 F.2d at 572-73; Clomon
v. Jackson, 988 F.2d 1314, 1322-23 (2d Cir. 1993).
Plaintiff argues that reading the statute to limit statutory damages to $1,000.00
no matter the number of violations “incentivizes unscrupulous debt collectors.” That
may be true in some cases, but certainly not in this case over a technical violation on
a phone message. More importantly, that is how Congress decided to account for a
debt collector’s multiple violations in collecting a single debt. Plaintiff may be
displeased with the amount of damages Congress determined was appropriate, but the
Court is bound by the statute. It does not authorize Plaintiff to attempt to structure
her Complaint to increase the amount of damages available.
Second, withholding already accrued violations and bringing separate lawsuits
seriatim would also violate the entire controversy doctrine. In fact, it would abrogate
26

the doctrine entirely. The entire controversy doctrine is a preclusionary principle
intended to avoid the fractionalization of litigation by requiring joinder in a single
action of all claims between the same parties arising out the same circumstances. See,
e.g., Rycoline Prod., Inc. v. C&W Unlimited, 109 F.3d 883, 887 (3d Cir. 1997).19 The
purposes of the doctrine are threefold: (1) to encourage the comprehensive and
conclusive determination of a legal controversy; (2) to achieve party fairness; and (3)
to promote judicial economy and efficiency by avoiding fragmented, multiple and
duplicative litigation. See, e.g, Fields v. Thompson Printing Co., 363 F.3d 259, 265
(3d Cir. 2004). The doctrine applies “to prevent a party from voluntarily electing to
hold back a related component of the controversy in the first proceeding by
precluding it from being raised in a subsequent proceeding thereafter.” Oltremare v.
ESR Custom Rugs, 330 N.J. Super. 310, 314 (App. Div. 2000).
The entire controversy doctrine applies with full force to FDCPA claims. In
Beeders v. Gulf Coast Collection Bureau, 632 F. Supp. 2d 1125 (M.D. Fla. 2009), the
consumer filed separate actions for each telephone call he alleged violated the
FDCPA. Id. at 1128-29. The intent in doing so was to skirt the $1,000 statutory

19

New Jersey’s Entire Controversy Doctrine is part of the substantive law of New
Jersey and applies equally in federal and state courts. See Rycoline, 109 F.3d at 887 (“A
federal court hearing a federal cause of action is bound by New Jersey’s Entire Controversy
Doctrine, an aspect of substantive law of New Jersey, by virtue of the Full Faith and Credit
Act.”).
27

maximum. Id. The Court held that Plaintiff was required to bring all of his claims
in a single action and obtain a single statutory award of $1,000,00:
These facts form a nucleus of operative facts that is
identical in each suit. The litigation of any one of these
claims would have claim preclusive effect on the other
cases. These claims, which seek the same remedy and
share the same nucleus of operative facts, are part of the
same cause of action and, therefore, should be joined in the
same suit as separate claims within the same cause of
action.
Id.; see also Sclafani v. BC Servs., Inc., 2011 WL 43619, at *3 n.1 (S.D. Fla. Jan. 6,
2011) (“The Court further notes that Plaintiff is precluded from asserting a separate
cause of action regarding the ‘similar or identical’ messages that he alleges Defendant
left on his answering machine, because these ‘similar or identical’ messages should
have been raised in detail as part of the allegations of this case.”).20
Plaintiff’s attempt to withhold multiple “claims” and save them for some later
date was a litigation tactic that multiplied the proceedings and impeded resolution of

20

Despite large amounts of time billed to legal research, the only case Plaintiff offers
in support of his multiple proceeding approach, Goins v. JBC & Assoc. P.C., 352 F. Supp.
2d 262 (D. Conn. 2005), is distinguishable. That case involved an alleged violation of the
Fair Debt Act that occurred after the initial suit for alleged FDCPA violations was filed. Id.
at 266. The court specifically held that separate suits for separate violations of the FDCPA
may be brought only when “the subsequent action is not duplicative and would not be barred
under the claim preclusion doctrine.” Id. In other words, Goins stands for the principle that,
if there is pending lawsuit and another violation occurs after that complaint was filed,
perhaps a second case would be permitted. That is not what happened here.
28

the case. Plaintiff was offered more than she could ever hope to recover under the
FDCPA—$1,500.00—before this case was ever filed.
4.

Plaintiff Was Only Marginally “Successful”

The Complaint seeks to recover for “actual damages” in an amount to be
determined at trial. (Compl., ¶ 28.) However, Mr. Cohen admits that Plaintiff did not
pursue the actual damages claim:
THE COURT:

[B]ut clearly you didn’t pursue
and you accepted the offer of
judgment. You didn’t pursue the
actual damages claim.

MR. COHEN:

Exactly.

(Tr. (2/1/12) at 20:21-24.) Thus, Plaintiff clearly was not “successful” in litigating
the actual damages claim pleaded in the Complaint.
It is also unclear how successful Plaintiff was with the other aspects of her
Complaint.

While she received the maximum statutory award available, that

apparently was not the real intent of filing the case. In Mr. Cohen’s own words, the
“reason I filed this case . . . is to make law in this District.” (Def.’s Ex. 3) (emphasis
added). An effort to make new law is fine. But, it didn’t happen.
The Supreme Court has noted that “the most critical factor in determining the
reasonableness of a fee award is the degree of success obtained.” Farrar, 506 U.S. at

29

114. Here, Plaintiff’s desire to create new law was unsuccessful and ultimately
abandoned; yet, it is responsible for nearly all attorney’s fees sought in this case. It
could reasonably be said that Plaintiff failed entirety and should be awarded no fee
at all. See, e.g., Farrar, 506 U.S. at 114 (noting that, where success is limited, “the
court may award low fees or no fees, without reciting the 12 factors bearing on
reasonableness.”).
5.

Plaintiff and Her Counsel Do Not Have an
Arms-Length Relationship

Mr. Cohen is Plaintiff’s husband. They live at the same address in New Jersey,
which is also Mr. Cohen’s law office.
In determining a reasonable fee award, the Court may consider the nature of the
attorney-client relationship and the fee arrangement. Windall, 51 F.3d at 1185 n.8.
Accordingly, the Court requested that Plaintiff’s counsel submit any retainer
agreement in this case. The agreement contains the following provision relating to
legal fees:
4.

Legal Fees. The agreed hourly fee is $425.00. You will
be required to pay our fees regardless of the outcome of
this case. The Firm may require you to pay your bill in full
at any time it desires or opt to settle up your account at the
completion of the case. Unless you write to us challenging
any specific billing entry within seven days of the receipt
of your bill, you ratify the legitimacy of said bill. By
signing this agreement you ratify all past bills sent to you
in this, or any previous, litigation. The Law Firm has not
30

made any guarantees regarding the expected outcome of
this litigation.
(Retainer Agreement dated June 10, 2010; CM/ECF No. 27-1.)
According to the above provision, Plaintiff presently owes her husband nearly
$29,000.00, billed by him to secure a $1,000.00 statutory damage amount that was
offered to her before the case was filed. Implausible, especially in view of Mr.
Cohen’s statements that he did the case to make new law.
Mr. Cohen’s fee petition did nothing to establish an arms-length fee
arrangement. Mr. Cohen prosecuted this case for his wife. It is unlikely that Plaintiff
was provided with monthly billing statements, or that if she was, she would object to
any of the numerous improper billing entries. This is because this is a fee shifting
case, because Plaintiff and her husband are not engaged in paying attorney-client
relationship, and because Plaintiff was likely never going to pay her husband for any
of the time spent on the file. In other words, there was no detached client to act as a
check on the amount of attorney billing.
The truth is that Plaintiff’s counsel has constructed a careful arrangement to
attempt to secure an award of attorney’s fees. If Plaintiff had retained counsel other
than her husband, Plaintiff would recover the amount of the Offer of Judgment, and
that counsel would be awarded an attorney’s fee. If Plaintiff herself had brought the

31

claim, she would not be entitled to any attorney’s fee at all.21 But in the manner in
which this case has been set up, Plaintiff has her husband bring the claim, and he then
may recover an attorney’s fee for himself, which then will benefit the Plaintiff as
well.
In the context of fee shifting statutes, importance has been placed on the ability
of counsel to provide detached, “independent, dispassionate legal advice . . . .” Ford
v. Long Beach Unified School Dist., 461 F.3d 1087, 1091 (9th Cir. 2006). And
generally, such statutes “assume a paying attorney-client relationship, [and] are
intended to assist litigants who could not otherwise afford to retain independent
counsel,” Kooi v. Sec. of the Dep’t of Health and Human Servs., 2007 WL 5161800
(Ct. Fed. Cl. Nov. 21, 2007). Thus, in a situation like this, where a husband is
assisting his wife (and himself), the incentive for awarding an attorney’s fee is
diminished:
Although the undersigned is not aware of any prohibition
against an attorney-spouse acting on behalf of a spouse, the
relationship to be categorized as an attorney-client
relationship for purposes of incurred costs must be
evidenced by a formal, established relationship. . . .
[W]ithout some evidence of a business relationship it
cannot be said that petitioner incurred a cost for her
husband’s work. In this case, there is no evidence that

21

See, e.g., Kay v. Ehrler, 499 U.S. 432 (1991).
32

[petitioner] entered into a paying, attorney-client
relationship with her husband. . . [the] assistance to the
spouse was of the personal nature and did not stem from an
attorney-client relationship, and is thus properly
characterized as self-help.
Kooi, 2007 WL 5161800, at *3 (emphasis added) (citations omitted).
The nature of the attorney-client relationship in this case raises questions as to
the amount of attorney’s fee sought.
6.

Summary
This case was never about the merits. Plaintiff was offered the maximum

amount she could hope to recover for her FDCPA claims prior to the filing of the
Complaint. Even before this case was filed, the dispute disintegrated into a battle
over a patently frivolous legal theory and the amount of attorney’s fees that would
ultimately be paid. This contravenes the intent of the FDCPA. See, e.g., Lee, 109
F.3d at 306-07.
Attorneys may posture over fees, but that does not mean the Court should
tacitly approve such conduct by awarding a substantial fee. The Undersigned had “a
ringside view” of this litigation. And that view confirms that the only reasonable
attorney’s fee should be the amount that was accrued at the time the pre-suit
settlement offer was made. That offer provided full value for Plaintiff’s legitimate

33

claim. Thus, the Court will compensate Plaintiff’s counsel for the 2.65 hours billed22
prior to receipt of the initial settlement offer at $395.00 per hour. The total attorney’s
fee is $1,046.75.23
7.

The Lodestar Calculation Confirms the Propriety of the Award24
The lodestar method directs calculation of a fee award based on the

multiplication of the hours reasonably expended by a reasonable hourly rate. This
Court has already explained why no hours expended beyond rejection of the pre-suit
settlement offer of the maximum damages were “reasonably” expended. To repeat,
the time billed beyond the pre-suit settlement offer were spent in furtherance of a
flawed legal theory that was eventually abandoned.

Likewise, the wholesale

abandonment of the theory correspondingly impacted the success Plaintiff achieved
in this case.
Plaintiff’s counsel will be credited with 2.65 hours of legal work all performed
on or before the date of the pre-suit settlement offer. Plaintiff’s hourly rate of
$395.00 is also accepted as reasonable. As a result, multiplying the hours performed
22

This refers to time entries on 6/10/10 (0.5 hrs.); 6/30/10 (0.4 hrs.); 8/5/10 (0.75
hrs.); 8/20/10 (0.50 hrs.); and 8/25/10 (0.5 hrs.). Total 2.65 hours.
23

2.65 x $395.00=$1,046.75.

24

The Court primarily reaches its fee determination as a matter of general
reasonableness wholly apart from the lodestar. However, application of the lodestar would
reach the same result.
34

by the reasonable rate results in $1,046.75 in attorney’s fees.25 Costs will also be
awarded in the amount of $453.00 for filing and serving the Complaint and traveling
to a Court-ordered conference. The total award is $1,499.75.

CONCLUSION
For the reasons stated above, it is respectfully recommended that Plaintiff’s
motion for attorney’s fees and costs be GRANTED IN PART AND DENIED IN
PART. It is recommended that Plaintiff be awarded $1,046.75 in attorney’s fees and
$453.00 in costs for a total award of $1,499.75.
/s/ Mark Falk
MARK FALK
United States Magistrate Judge

DATED:

March 13, 2012

25

No line by line analysis of the billing statements is necessary. Cf. Thompson v.
Wolpoff & Abramson, 312 Fed. Appx. 161, 164 (11th Cir. 2008) (citing Hensley, 461 U.S.
at 436-37). However, in the event a line by line analysis were called for, the Court observes
that the billing statements contain a number of entries that are facially improper, excessive,
and/or unnecessary. For example, Plaintiff’s counsel billed 1.5 hours to perform research on
his “multiple lawsuit theory” (time entry dated 9/15/10); 9.45 hours associated with
discovery, including unsigned discovery responses (time entries dated 2/24/11; 3/1/11;
3/10/11; 3/15/11; 3/19/11; and 3/21/11); 2.2 hours for legal research relating to amended
pleadings and preparation of an amended complaint; however, no amended pleading was ever
filed (time entry dated 3/7/11); and 8.1 hours to attend a Court-ordered settlement conference
that was supposed to begin at 10:00 a.m. but was delayed until 2:00 p.m. because Plaintiff
failed to appear (time entry dated 2/14/11). This is but a small sample of time that was
excessively or improperly billed in this case.
35