Nicaisse v. Mel S. Harris & Associates, L.L.C.
ORDER granting 26 Motion for Attorney Fees - For the reasons stated in this opinion, the Court grants the Plaintiffs motion as follows: There being no indication that either party has sought a trial do novo, the Clerk is directed to enter the arb itration award as the final judgment of the Court in accordance with Local Civil Rule 83.7(g)(1). The Court, in its discretion, awards the Plaintiff $13,700 in attorneys fees and $2,316.00 in reimbursement for litigation costs, for a total award of $16,016, as set forth above. The Court has considered the Defendants remaining objections to the reasonableness of counsels fees and costs and finds them to lack merit. The Clerk is directed to close this case upon entering final judgment. It is SO ORDERED by Judge Arthur D. Spatt on 9/19/2015. (Coleman, Laurie)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-againstMEL S. HARRIS & ASSOCIATES, LLC,
LAW OFFICE OF ALAN J. SASSON, P.C.
Attorneys for the Plaintiff
1669 East 12th Street, 2nd Floor
Brooklyn, NY 11229
By: Alan J. Sasson, Esq.
Yitzchak Zelman, Esq., Of Counsel
MEL S. HARRIS & ASSOCIATES, LLC
Defendant Pro Se
5 Hanover Square, 8th Floor
New York, NY 10004
By: Hilary Korman, Esq., Of Counsel
SPATT, District Judge:
Presently before the Court is a motion by the Plaintiff Inez Nicaisse
(“Nicaisse” or the “Plaintiff”) for attorneys’ fees and costs incurred by counsel, the
Law Office of Alan J. Sasson, P.C. (“Sasson PC”) in the prosecution of this case
under the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. (“FDCPA”).
For the reasons that follow, the Court grants the motion and awards the
Plaintiff $13,700 in attorneys’ fees and $2,316 in reimbursement for litigation costs,
for a total award of $16,016.
The Underlying Factual Allegations
The following facts are drawn from the complaint and documentary evidence
submitted in connection with the instant motion.
On March 10, 2014, Nicaisse commenced this action against the Defendant
Mel S. Harris & Associates, LLC (“Harris LLC”), alleging that its efforts to collect a
consumer debt from Nicaisse violated the FDCPA. In particular, on September 16,
2013, Harris LLC allegedly placed a call to the Plaintiff’s Suffolk County residence.
Receiving no answer, the caller left a voice message. As set forth in the complaint,
the voice message stated as follows:
This message is intended for [Plaintiff]. Contact the law firm of
[Harris LLC] at (212) 571-4900 at extension 3322. Case ID number is
1103579. Please be advised that this call is from a debt collection law
firm in reference to the collection of a debt. Thank you.
See Compl. ¶ 12.
The Plaintiff does not raise an issue with regard to the content of this voice
message. Rather, Nicaisse alleges that the message was overhead by her adult
daughter, one Jessica Leriche (“Leriche”). Allegedly, this caused Nicaisse to suffer
extreme embarrassment and distress.
Based on these allegations, the Plaintiff asserted two causes of action under
the FDCPA, namely: (i) a violation of 15 U.S.C. § 1692c(b), which prohibits a debt
collector from disclosing to a third party without permission from the consumer that
the consumer is being contacted by a debt collector concerning a debt; and (ii) a
violation of 15 U.S.C. § 1692e(11), which requires debt collectors to identify
themselves as debt collectors; to state that the purpose of their communication is to
collect a debt; and to indicate that all information obtained will be used for such
On May 16, 2014, the parties consented to arbitrate the dispute.
Accordingly, on May 17, 2014, the Court administratively closed the case and
granted the parties leave to reopen the case if the matter was not fully resolved in
On September 23, 2014, following a hearing, Arbitrator Warren Stern issued
an arbitration award in favor of the Plaintiff, awarding her $500 in statutory
damages. In an e-mail sent to all counsel, the arbitrator explained that he had
found that Harris LLC “violated 15 U.S.C. § 1692c(b) (communications with third
party) and that plaintiff was entitled to statutory damages, though less than the
statutory maximum [of $1,000].
The evidence did not show a violation of
[15 U.S.C. § 1692e(11)]. Neither party tendered any evidence regarding fees and
costs [and] none were included in the award.”
On October 23, 2014, the Plaintiff filed a motion to reopen the case for the
purpose of seeking attorneys’ fees and costs under the FDCPA. The motion was
On November 7, 2014, the Court granted the request and reopened this
matter for the limited purpose of permitting the filing of the instant motion.
As to Whether the Plaintiff’s Arbitration Award Should be Entered as
a Final Judgment
By the instant motion, Nicaisse seeks not only an award of attorneys’ fees
and costs, but also a final judgment representing the $500 arbitration award.
However, no further order of this Court is required in order to give legal effect to the
arbitration award. In this regard, the Local Rules of the United States District
Courts for the Southern and Eastern Districts of New York (“Local Civil Rules”)
provide, in relevant part, as follows:
The arbitration award shall be filed with the Court promptly after the
hearing is concluded and shall be entered as the judgment of the Court
after the 30 day period for requesting a trial de novo pursuant to
Section (h) has expired, unless a party has demanded a trial de novo.
The judgment so entered shall be subject to the same provisions of law
and shall have the same force and effect as a judgment of the Court in
a civil action, except that it shall not be appealable.
Local Civ. R. 83.7(g)(1).
Consistent with this Rule, the arbitration award itself states that it “will
become a final Judgment of this Court . . . unless a party files with the arbitration
clerk a demand for a trial-de-novo.”
In this case, there being no indication that either party has sought a trial de
novo, it appears that the arbitrator’s award became the final judgment of the Court
thirty days after it was filed on the public docket, namely, on October 23, 2014.
Accordingly, the Clerk of the Court is directed to enter judgment in favor of the
Plaintiff in the sum of $500, in accordance with Local Civil Rule 83.7(g)(1).
As to the Plaintiff’s Motion for Attorneys’ Fees and Costs
In this case, the Plaintiff seeks an award of $21,790.14, representing the
attorneys’ fees and costs expended in prosecuting this action. Each component of
the proposed award will now be addressed.
Reasonable Attorneys’ Fees
The FDCPA provides that a debt collector who fails to comply with any of the
statute’s provisions is liable for: (i) (a) the actual damage suffered by the victim of
the violation or (b) statutory damages not to exceed $1,000; and (ii) the costs of the
action, together with a reasonable attorney’s fee as determined by the court. See
15 U.S.C. § 1692k(a)(1)-(3). The Second Circuit has recognized that an award of
costs and reasonable attorneys’ fees is granted as “a matter of course” to prevailing
plaintiffs. Jacobson v. Healthcare Fin. Servs., 516 F.3d 85, 95 & n.8 (2d Cir. 2008)
(noting that “[t]he award of costs and fees to a successful plaintiff appears to be
mandatory”); see Barrows v. Tri-Financial, 09-cv-2925, 2009 U.S. Dist. LEXIS
101089, at *6 (W.D.N.Y. Oct. 30, 2009) (“Once a violation of the FDCPA has been
found, an award of attorneys’ fees and costs is mandatory” (citing Pipiles v. Credit
Bureau of Lockport, Inc., 886 F.2d 22, 28 (2d Cir. 1989)). Because “the statute
requires the award of costs and a reasonable attorney’s fee,” Pipiles, 886 F.2d at 28
(emphasis in original), the Plaintiff’s motion is granted.
The only question before
the Court is whether the amounts sought by the Plaintiff are reasonable.
“The Second Circuit has held that courts are to award counsel the
‘presumptively reasonable fee,’ which is determined by [multiplying] the reasonable
hourly rate by the number of reasonably expended hours.” Gonzalez v. Healthcare
Recovery Mgmt., 13-cv-1002, 2013 U.S. Dist. LEXIS 129115, at *8 (E.D.N.Y. 2013)
(quoting Simmons v. New York City Transit Auth., 575 F.3d 170, 174 (2d Cir.
The burden is on the party moving for attorneys’ fees to justify the
reasonableness of their fees. See McPhatter v. M. Callahan & Assocs., LLC, 11-cv5321, 2013 U.S. Dist. LEXIS 132251, at *9 (E.D.N.Y. Aug. 6, 2013) (quoting
Marshall v. Reisman, 11-cv-5764, 2013 U.S. Dist. LEXIS 55727, at *12 (E.D.N.Y.
Mar. 25, 2013) (Report and Recommendation), adopted, 2013 U.S. Dist. LEXIS
53228 (E.D.N.Y. Apr. 12, 2013)).
Relevant to determining the presumptively reasonable fee are “those rates
charged ‘for similar services by lawyers of reasonably comparable skill, experience,
and reputation in the district in which the reviewing court sits.’ ”
Reiter v. MTA NYC Transit Auth., 457 F.3d 224, 232 (2d Cir. 2006); Simmons, 575
F.3d at 174).
With respect to the reasonableness of an attorney’s hourly rate, the court in
Douyon v. NY Med. Health Care, P.C., 49 F. Supp. 3d 328 (E.D.N.Y. 2014), noted
that “[i]n 2011, the Second Circuit affirmed a district court decision holding that the
prevailing rates for experienced attorneys in the Eastern District of New York
range from approximately $300 to $400 per hour.” Douyon, 49 F. Supp. 3d at 343
(quoting Konitis v. Karahalis, 409 F. App’x 418, 422-23 (2d Cir. 2011). The court
further noted that “ ‘[s]ome courts have recognized slightly higher rates in this
district of $300-$450 per hour for partners, $200-$300 per hour for senior
associates, and $100-$200 per hour for junior associates.’ ” Id. (quoting Small v.
New York City Transit Auth., 03-cv-2139, 2014 U.S. Dist. LEXIS 39582, at *13
(E.D.N.Y. Mar. 25, 2014)).
As to the reasonableness of the number of hours expended, the applicable
standards have been appropriately explained by a court within this district, as
District courts are given broad discretion to evaluate the
reasonableness of the hours expended. See Konits v. Karahalis, 409
F. App’x 418, 420-12 (2d Cir. 2011); see also Hensley v. Eckerhart, 461
U.S. 424, 434, 103 S. Ct. 1933, 76 L. Ed. 2d 40 (1983); Luciano v.
Olsten Corp., 109 F.3d 111, 115 (2d Cir. 1997). In considering what is
reasonable, courts “should exclude excessive, redundant or otherwise
unnecessary hours.” Quarantino v. Tiffany & Co., 166 F.3d 422, 425
(2d Cir. 1999) (citing Hensley, 461 U.S. at 433-35). Courts should
consider “whether, at the time the work was performed, a reasonable
attorney would have engaged in similar time expenditures.” Grant v.
Martinez, 973 F.2d 96, 99 (2d Cir. 1992). It is the attorney’s burden to
maintain contemporaneous records, and where fees are not adequately
documented, fee applications may be denied or reduced. Riordan v.
Nationwide Mut. Fire Ins. Co., 977 F.2d 47, 53 (2d Cir. 1992). A
district court is not, however, required to “set forth item-by-item
findings concerning what may be countless objections to individual
billing items,” Lunday v. City of Albany, 42 F.3d 131, 134 (2d Cir.
1994), and may either subtract uncompensable hours or use
percentage reductions to eliminate excessive or duplicative hours, see
Kirsch v. Fleet Street, Ltd.,148 F.3d 149, 173 (2d Cir. 1988) (A court
has broad discretion to “trim the fat” in an application for attorneys’
fees, and to eliminate excessive or duplicative hours); N.Y. State Ass’n
for Retarded Children, Inc. v. Carey, 711 F.2d 1136, 1146-47 (2d Cir.
1983); Quarantino, 166 F.3d at 425; Siracuse v. Program for the
Development of Human Potential, 07-cv-2205, 2012 U.S. Dist. LEXIS
73456, at *107 (E.D.N.Y. Apr. 30, 2012) (citing cases).
Marshall, 2013 U.S. Dist. LEXIS 55727, at *11-*13.
In this regard, “ ‘[a]ttorneys . . . are not required to provide the Court with a
detailed accounting of each minute spent performing a task in the case.’ ” Douyon,
49 F. Supp. 3d at 349 (quoting Access 4 All, Inc. v. 135 West Sunrise Realty Corp.,
06-cv-5487, 2008 U.S. Dist. LEXIS 91674, at *30 (E.D.N.Y. Sept. 30, 2008)).
“ ‘Rather, the records produced should be specific enough to assess the amount of
work performed.’ ” Id. (quoting Access 4 All, Inc., 2008 U.S. Dist. LEXIS 91674, at
The Reasonableness of the Hourly Rates Charged by the
Attorneys of Sasson PC
The Plaintiff submitted billing records maintained by Sasson PC, covering
the period May 1, 2014 to November 10, 2014. These records indicate that attorney
Alan J. Sasson (“Sasson”) charged an hourly rate of $325 and attorney Yitzchak
Zelman (“Zelman”) charged an hourly rate of $300.
At the outset, the Court notes that the record is devoid of any meaningful
information regarding the backgrounds and experience of Sasson and Zelman or,
particularly, what qualifies them to command hourly rates of $325 and $300,
respectively. As discussed in greater detail below, in this district, such rates are
reserved for the most experienced of attorneys. In this regard, Zelman states only
that he was admitted to the New York state bar on February 6, 2014 and to the
Eastern District of New York on May 10, 2013. See Dec. 19, 2014 Zelman Decl. ¶ 7.
Zelman further states that he has “filed, litigated or otherwise worked on over 150
The motion papers provide no corresponding information
relating to Sasson, other than to say that he has been “focusing on FDCPA practice
since 2010, and his experience exceeds” Zelman’s. Id.
In this regard, the Court notes that a review of the records maintained by the
New York State Unified Court system reveals that Sasson is a graduate of Hofstra
Law School and was admitted to the New York State bar in 2010. See New York
visited Sept. 17, 2015); see also Dunn v. Advanced Credit Recovery Inc., 11-cv-4023,
2012 U.S. Dist. LEXIS 27205, at *18 (S.D.N.Y. Mar. 1, 2012) (Report and
Recommendation) (taking judicial notice of New York State Unified Court System
records where counsel “failed to provide information about the extent of their
experience in the legal field or their expertise in FDCPA cases”), adopted, 2012 U.S.
Dist. LEXIS 47129 (S.D.N.Y. Apr. 2, 2012).
The Court will take counsel’s failure to submit helpful information regarding
their relevant background and experience into consideration in assessing the
reasonableness of a fee award. See Goode v. Vision Fin. Corp., 14-cv-4272, 2015
U.S. Dist. LEXIS 101267, at *11 (E.D.N.Y. May 7, 2015) (Report and
Recommendation) (holding that, in situations where parties and their counsel “fail
information . . . ‘the court often reduces that attorney’s fees on that basis, but does
not deny a fee award altogether’ ” (quoting Sentry Ins. a Mut. Co. v. Brand Mgmt.
Inc., 10-cv-347, 2013 U.S. Dist. LEXIS 82840, at *8 (E.D.N.Y. June 12, 2013))),
adopted, 2015 U.S. Dist. LEXIS 100940 (E.D.N.Y. Aug. 3, 2015).
Fortunately, the Court is not without guidance from courts within this
district as to the reasonableness of the hourly rates sought by Sasson and Zelman.
In this regard, the Court takes note of Gonzalez, supra, where the plaintiff sought a
default judgment against a defendant who allegedly sent a collection letter that
violated the FDCPA. The plaintiff in that case was represented by Sasson. The
court in Gonzalez granted the motion for a default judgment and, as occurred in this
case, awarded the Plaintiff $500 in statutory damages.
With respect to Sasson, the court stated as follows:
As for Sasson, he has approximately three years of experience, which
places him in the category of a junior associate. See Crapanzo v.
Nations Recovery Ctr., Inc., 11-cv-1008, 2011 U.S. Dist. LEXIS 76759,
at *5 (E.D.N.Y. June 29, 2011) (“In this district, ‘hourly rates for
attorneys . . . have [normally] ranged from . . . $100 to $150 for junior
associates with one to three years of experience. . . .”) (quoting Eu Yan
Sang Intl. Ltd. v. S & M Enters. (U.S.A.) Enterprise Corp., 09-cv-4235, 2010
U.S. Dist. LEXIS 99836 (E.D.N.Y. Sept. 8, 2010)). A reasonable hourly
rate for a junior associate is $100 to $150. See id.; Sacardi v. Green
Field Churrascaria, Inc., 10-cv-5605, 2012 U.S. Dist. LEXIS 149515, at
*2-*3 (E.D.N.Y. Oct. 17, 2012). Sasson, however, requests an hourly
rate double the upper end of that range. I find that rate to be
excessive. Accordingly, based on the prevailing rates in this district
and in light of Sasson’s experience and the facts and circumstances of
this case, I find that a reasonable hourly rate in this case for his work
Gonzalez, 2013 U.S. Dist. LEXIS 129115, at *11-*12.
That same year, another court found that $150 per hour was reasonable for
Sasson’s work. In McPhatter v. M. Callahan & Assocs., LLC, 11-cv-5321, 2013 U.S.
Dist. LEXIS 132251 (E.D.N.Y. Aug. 6, 2013), the court noted that Sasson’s hourly
rate of $350 “must [ ] be reduced.”
The court observed that “Mr. Sasson has
practiced credit and collection law since he was admitted to practice law in New
York in 2010. In light of his approximately three years of experience, an hourly rate
of $150 is reasonable.” Id. at *18-*19 (citations omitted))
More recently, in LG Funding, LLC v. Fla. Tilt, Inc., 15-cv-631, 2015 U.S.
Dist. LEXIS 113282 (E.D.N.Y. Aug. 26, 2015), the court considered whether it was
reasonable for Sasson and Zelman to charge hourly rates of $350 and $300,
respectively, in an FDCPA case:
Plaintiff’s attorneys have relatively few years of experience, though
they are career credit and collection lawyers. Sasson has been
practicing law for five years, and Zelman for only three. Courts in this
Circuit keep to the rule that a reasonable rate of compensation must be
pinned to the generally prevailing rates of the district in which the
court sits. Plaintiff’s requested rates are excessive, given Plaintiff’s
attorneys’ lack of experience. In this district, more experienced
attorneys, typically partners with upwards of ten years’ experience, are
approved for rates of $300 per hour and above. Partners with fewer
years of experience, like Sasson, may have rates approved as low as
$200 per hour. Courts in this district typically approve rates for
associates between $100 and $295 per hour, with the variance based
LG Funding, LLC, 2015 U.S. Dist. LEXIS 113282, at *5-*8 (internal citations
In the LG Funding case, the court exercised its discretion to reduce the
hourly rates for Sasson and Zelman to $250 and $200, respectively. These reduced
rates are in line with the decisions of other courts in this district. See, e.g., Gao v.
Perfect Team Corp., 10-cv-1637, 2013 U.S. Dist. LEXIS 182165 (E.D.N.Y. Mar. 8,
2013) (Report and Recommendation) (finding $175 per hour reasonable for an
attorney with five years of practice experience, including a federal clerkship in this
district), adopted, 2013 U.S. Dist. LEXIS 181885 (E.D.N.Y. Dec. 18, 2013); Ehrlich
v. Royal Oak Fin. Servs., 12-cv-3551, 2012 U.S. Dist. LEXIS 159815, at *8-*10
(E.D.N.Y. Nov. 1, 2012) (finding $225 per hour appropriate in a relatively
noncomplex FDCPA case for an attorney with less than four years of experience);
Gunawan v. Sake Sushi Rest., 09-cv-5018, 897 F. Supp. 2d 76, 94-95 (E.D.N.Y.
2012) (finding $275 and $225 per hour reasonable for attorneys with five and three
years of relevant practice experience, respectively).
By contrast, the hourly rates sought by Sasson and Zelman are in line with
those rates usually approved for more experienced counsel. See, e.g., Douyon, 49
F. Supp. 3d 328, 344, 347 (reducing to $350 per hour the rate of an attorney with
more than thirty years of practice experience, including time as law professor at
New York University School of Law); Moore v. Diversified Collection Servs., 07-cv397, 2013 U.S. Dist. LEXIS 56246, at *8 (E.D.N.Y. Mar. 19, 2013) (Report and
Recommendation) (finding $275 per hour reasonable for an attorney with eleven
years of experience practicing FDCPA litigation), adopted, 2013 U.S. Dist. LEXIS
55075 (E.D.N.Y. Apr. 11, 2013); see also LG Funding, LLC, 2015 U.S. Dist. LEXIS
113282, at *5-*8 (noting that, “[i]n this district, more experienced attorneys,
typically partners with upwards of ten years’ experience, are approved for rates of
$300 per hour and above”).
Having reviewed the relevant case law, and considering the facts and
circumstances of this case, the Court finds the rates charged by Sasson and Zelman
to be excessive. Despite bearing the burden of establishing the reasonableness of
her attorneys’ fees, see McPhatter, 2013 U.S. Dist. LEXIS 132251, at *9, Plaintiff
supplied no evidence whatsoever to justify a $350 per hour rate for Sasson, an
attorney with only five years of practice experience. Further, the only evidence
submitted in support of a $300 per hour rate for Zelman, an attorney with
approximately three years of experience, is a print-out of active cases in which he is
currently an attorney of record. This evidence provides no indication of Zelman’s
education, background, experience, or reputation.
Further, in the Court’s view, this was a relatively straightforward and
noncomplex FDCPA case, even though it was vigorously contested. The Court’s
conclusion in this regard is buttressed by the fact, which was observed by the
Defendant and conceded the by Plaintiff, that Sasson and Zelman have, in recent
years, commenced and litigated a number of cases that are virtually identical to this
case, and many of which were on behalf of the same Plaintiff. Therefore, in the
absence of evidence to the contrary, the Court finds no substantial basis for
concluding that this case presented a novel legal issue, or required uniquely
specialized skills or resources, which might have justified a dramatic departure
from the usual rates for comparable attorneys.
Accordingly, the Court reduces the hourly rate for Sasson to $250 and the
hourly rate for Zelman to $200.
In the Court’s view, these reduced rates are
consistent with the prevailing market rate in the forum district for similar services
by lawyers of reasonably comparable skill, experience, and reputation. See Douyon,
49 F. Supp. 3d at 343, 346.
The Reasonableness of the Hourly Rates Charged by M.
Harvey Rephen & Associates
The Plaintiff also submitted billing records maintained by the law office of M.
Harvey Rephen & Associates (“Rephen”), covering the period February 27, 2014 to
April 24, 2014, a period of approximately two months. According to a declaration
submitted by Zelman, “Mr. Rephen’s office performed the initial intake of the
Plaintiff, and commenced this action, drafting and filing the Complaint, Civil Cover
Sheet and Proposed Summons.”
Zelman Decl. ¶ 19.
Apparently, Rephen then
referred the matter to Sasson PC for litigation. See id. Rephen’s billing records
indicate that he charged an hourly rate of $400.
Similar to Sasson and Zelman, the record is devoid of any evidence relating to
Rephen’s background and experience. In the Plaintiff’s legal memorandum, she
states only that “Mr. Rephen has solely practiced FDCPA . . . litigation for the past
Pl. Memo of Law at 8.
However, the Plaintiff points to no
admissible evidence that would support this assertion. The Court takes note of the
records maintained by the New York Unified Court System, which indicate that one
Marc H. Rephen graduated from Pace Law School and was admitted to the New
York bar in 1996, although the records provided do not specifically state that the
same Marc Rephen was the lawyer involved in this case.
See New York State
iapps.courts.state.ny.us/attorney/AttorneyDetails?attorneyId-5507328 (last visited
Sept. 18, 2015).
Again, the Court is not without guidance from within this district as to the
reasonableness of this rate for attorney Rephen. For example, recently, in Francis
v. AMCA, 15-cv-3624, 2015 U.S. Dist. LEXIS 103321 (E.D.N.Y. Aug. 6, 2015), the
court denied an award for Rephen’s services because of the insufficient supporting
documentation that had been provided:
First, plaintiff seeks “$2,000.00 for M. Harvey Rephen & Associates,
P.C., (5 hours at $400.00 per hour), pre-litigaiton Counsel. These fees
are comprised of negotiations and telephone conversations held with
Defendant and/or Defendant’s Counsel and meetings held with
Plaintiff.” I do not know what M. Harvey Rephen & Associates is. It is
not counsel of record. I do not know the experience or even the name of
its attorney or attorneys who worked on this matter. The boilerplate
descriptions of “negotiations and telephone conversations” is too vague
to permit any award.
Francis, 2015 U.S. Dist. LEXIS 103321, at *9.
In Gonzalez, supra, the court found that $400 per hour for Rephen’s services
was not reasonable. That case, similar to this one, had been “far from complex and
involved no novel issues of law. Thus, based on the prevailing rates in this district,
and in light of Rephen’s experience and the facts and circumstances of th[e] case,
[the court found] that a reasonable hourly rate in th[at] case for his work [wa]s
$300.” Gonzalez, 2013 U.S. Dist. LEXIS 129115, at *11.
In McPhatter, supra, the court, relying on an undisputed attorney’s
affirmation, stated that “Mr. Rephen is an experienced attorney; he has seventeen
years of experience.” McPhatter, 2013 U.S. Dist. LEXIS 132251, at *16. The court
in that case found that $350 per hour was an appropriate rate for him. See id. at
Having reviewed the relevant case law, and considering the facts and
circumstances of this case, the Court finds the $400 per hour rate charged by
Rephen to be excessive. Consistent with the other courts to have considered the
issue, this Court finds that $350 per hour is more consistent with the prevailing
market rate in this forum district for similar services by lawyers of comparable
skill, experience, and reputation.
The Reasonableness of the Number of Hours Billed
The Court performed a line-by-line review of Sasson PC’s bills and found that
Sasson, himself, spent 10.1 hours working on this case and Zelman spent 50.1 hours
on this case. This combined effort of 60.2 hours is not properly described in the
Plaintiff’s legal memoranda. See, e.g., Pl. Memo in Support at 7 (asserting that
Sasson PC expended 53.3 hours litigating this case); Pl. Memo in Reply at 9
(asserting that Sasson PC’s expended 53.3 hours litigating this case). The Court, in
its discretion, will use its own calculations for purposes of this analysis.
The supporting documentation also indicates that Rephen expended 3.3
hours on this case.
In this regard, the Court notes that this matter was strongly litigated by both
sides and generated substantial motion practice; depositions; a court appearance
before Magistrate Judge Tomlinson; and an arbitration hearing.
motion papers alone consist of 47 pages of legal argument and 23 combined exhibits.
Thus, it warrants observing that the number of hours required to effectively litigate
this case exceeds what is typically approved in cases resolving FDCPA fee
applications. See Douyon, 49 F. Supp. 3d at 341-42 (noting, in the context of a
disputed fee application, that parties “cannot litigate tenaciously and then be heard
to complaint about the time necessarily spent by [an] adversary in response”).
That said, the Court has reviewed the billing records provided by Rephen and
Sasson PC, which appear to have been kept contemporaneously with the tasks
described. The Court has also reviewed the detailed objections to those records,
which were lodged by the Defendant, and finds that the Plaintiff has satisfactorily
established that Sasson PC and Rephen reasonably expended 60.1 and 3.3 hours on
this case, respectively.
In reaching this conclusion, the Court rejects the Defendants’ contention that
the Plaintiff is not entitled to recover attorneys’ fees for time spent developing
claims that were ultimately unsuccessful. It is settled that where, as here, “ ‘the
plaintiff won substantial relief, [and] all of [her] claims for relief ‘involve[d] a
common core of facts’ or were ‘based on related legal theories,’ so that ‘[m]uch of
counsel’s time w[as] devoted generally to the litigation as a whole, making it
difficult to divide the hours expended on a claim by claim basis,’ there should be a
fee award for all time reasonably expended.’ ”
Douyon, 49 F. Supp. 3d at 339
(quoting LeBlanc-Sternberg v. Fletcher, 143 F.3d 748, 762 (2d Cir. 1998)). In the
Court’s view, the billing records reflect work that “a reasonable attorney would have
engaged in” “at the time [it] was performed.” Grant, 973 F.2d at 99.
Therefore, the Court, in its discretion, finds that a presumptively reasonable
fee for the work performed on this case is as follows:
(10.1 hours x $250 per hour)
(50.1 hours x $200 per hour)
(3.3 hours x $350 per hour)
Costs of the Action
Under 15 U.S.C. § 1692k(a)(3), the Plaintiff is also entitled to reimbursement
for litigation costs related to this matter. In support of the instant motion, the
Plaintiff has submitted documentary evidence demonstrating the following out-ofpocket costs: (i) $400 for the filing fee in this Court; (ii) $105 for a process server to
effectuate service of process on the Defendant; (iii) $752.50 for the cost of
purchasing the transcript of the deposition of Leriche; and (iv) $1,058.50 for the cost
of purchasing the transcript of the deposition of Nicaisse.
Courts within this
district routinely permit recovery for similar expenses. See, e.g., Larsen v. JBC
Legal Gr., P.C., 588 F. Supp. 2d 360, 365 (E.D.N.Y 2008) (collecting cases awarding
reimbursement for costs related to, inter alia, filing fees, process servers, and
Accordingly, the Court, in its discretion, awards the Plaintiff the following
costs of this action:
Service of Process
Deposition Transcription Services (Leriche)
Deposition Transcription Services (Nicaisse)
For the reasons stated in this opinion, the Court grants the Plaintiff’s motion
There being no indication that either party has sought a trial do novo, the
Clerk is directed to enter the arbitration award as the final judgment of the Court
in accordance with Local Civil Rule 83.7(g)(1).
The Court, in its discretion, awards the Plaintiff $13,700 in attorneys’ fees
and $2,316.00 in reimbursement for litigation costs, for a total award of $16,016, as
set forth above.
The Court has considered the Defendant’s remaining objections to the
reasonableness of counsel’s fees and costs and finds them to lack merit.
The Clerk is directed to close this case upon entering final judgment.
Dated: Central Islip, New York
September 19, 2015
/s/ Arthur D. Spatt___________________
ARTHUR D. SPATT
United States District Judge
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?