Stevens v. EOS CCA
DECISION AND ORDER granting in part and denying in part 16 Motion for Attorney Fees: The Court hereby ORDERS that Plaintiff's motion for attorney's fees (Dkt. No. 16) is GRANTED in part and DENIED in part; and the Court further ORDERS t hat Plaintiff is awarded $2,340.00 in attorney's fees and $465.00 in costs; and the Court further ORDERS that the Clerk of the Court shall serve a copy of this Decision and Order on the parties in accordance with the Local Rules. Signed by U.S. District Judge Mae A. D'Agostino on 4/21/17. (ban)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
MARCUS & ZELMAN, LLC
1500 Allaire Ave.
Ocean, New Jersey 07712
Attorneys for Plaintiff
YITZCHAK ZELMAN, ESQ.
PELTAN LAW, PLLC
128 Church Street
East Aurora, New York 14052
Attorneys for Defendant
DAVID G. PELTAN, ESQ.
Mae A. D'Agostino, U.S. District Judge:
DECISION AND ORDER
On September 1, 2016, Sharon Stevens ("Plaintiff") commenced this action pursuant to the
Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. ("FDCPA") against EOS CCA
("Defendant"). See Dkt. No. 1. On December 14, 2016, Plaintiff accepted an offer of partial
judgment in the amount of $1,501.00 for damages pursuant to Fed. R. Civ. P. 68 as a result of
Defendant's alleged violations of the FDCPA. See Dkt. No. 13. The order reserved on the issue
of Plaintiff's attorney's fees and costs where "[s]aid fees and costs are to be in an amount as agreed
by counsel for the parties, or if they are unable to agree, as determined by the Court, upon
Motion." See id at 5.
Plaintiff's attorney Yitzchak Zelman ("Zelman") and Defendant did not reach an agreement
on attorney's fees. As a result, on January 17, 2017 Mr. Zelman filed this pending motion for
twenty-three hours of attorney's fees at $250.00 per hour for a total of $5,750.00 in attorney's fees
along with $465.00 in costs and expenses, for a total of $6,215.00 in fees and costs. See Dkt. No.
16-1 at 9. On February 6, 2017, Defendant filed a response in opposition to Mr. Zelman's motion.
See Dkt. No. 19. On February 9, 2017, Mr. Zelman filed his reply to Defendant's motion. See
Dkt. No. 20.
Pursuant to the FDCPA, a prevailing plaintiff 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).
Having found authority for an award of attorney's fees to Plaintiff, the Court must now determine
whether Plaintiff's fee request is reasonable.
"When a litigant qualifies as one eligible for attorney's fees under the FDCPA, the district
court has the discretion to adjust the amount of fees for various portions of the litigation, guided
by reason and the statutory criteria." Kapoor v. Rosenthal, 269 F. Supp. 2d 408, 412 (S.D.N.Y.
2003) (citing 15 U.S.C. § 1692k(a)(3)). "Both [the Second Circuit] and the Supreme Court have
held that the lodestar–the product of a reasonable hourly rate and the reasonable number of hours
required by the case–creates a 'presumptively reasonable fee.'" Millea v. Metro-N. R. Co., 658
F.3d 154, 166 (2d Cir. 2011) (quoting Arbor Hill Concerned Citizens Neighborhood Assoc. v.
Cnty. of Albany, 522 F.3d 182, 183 (2d Cir. 2008)) (other citation omitted); see also Bergerson v.
N.Y. State Office of Mental Health, Cent. N.Y. Psychiatric Ctr., 652 F.3d 277, 289 (2d Cir. 2011)
(stating "[a]ttorneys' fees are awarded by determining a presumptively reasonable fee, reached by
multiplying a reasonable hourly rate by the number of reasonably expended hours") (citing
Simmons v. N.Y. City Transit Auth., 575 F.3d 170, 174 (2d Cir. 2009)). "The lodestar figure
should be in line with the rates prevailing in the community for similar services by attorneys of
comparable skill, experience, and reputation." Kapoor, 269 F. Supp. 2d at 412 (citing Hensley v.
Eckerhart, 461 U.S. 424, 433 (1983); Luciano v. Olsten Corp., 109 F.3d 111, 115 (2d Cir. 1997)).
"[T]he presumptively reasonable fee boils down to 'what a reasonable, paying client would
be willing to pay,' given that such a party wishes 'to spend the minimum necessary to litigate the
case effectively.'" Simmons, 575 F.3d at 174. In the Second Circuit, "'any attorney . . . who
applies for court-ordered compensation in this Circuit . . . must document the application with
contemporaneous time records . . . specify[ing], for each attorney, the date, the hours expended,
and the nature of the work done.'" Marion S. Mishkin Law Office v. Lopalo, 767 F.3d 144, 148
(2d Cir. 2014) (quoting N.Y. State Ass'n for Retarded Children, Inc. v. Carey, 711 F.2d 1136,
1148 (2d Cir. 1983)).
"In determining a reasonable fee, the district court 'should exclude . . . hours that were not
reasonably expended,' including 'hours that are excessive, redundant, or otherwise unnecessary.'"
Genito v. Forster & Garbus LLP, No. 6:15-CV-00954, 2016 WL 3748184, *2 (N.D.N.Y. July 11,
2016) (quoting Hensley, 461 U.S. at 434). "The relevant inquiry for the Court 'is not whether
hindsight vindicates an attorney's time expenditures, but whether, at the time the work was
performed, a reasonable attorney would have engaged in similar time expenditures.'" Id. (quoting
Grant v. Martinez, 973 F.2d 96, 99 (2d Cir. 1992)). "In excluding hours that were not reasonably
expended, 'the court has discretion simply to deduct a reasonable percentage of the number of
hours claimed 'as a practical means of trimming fat from a fee application.'" Id. (quoting Kirsch v.
Fleet St., Ltd., 148 F.3d 149, 173 (2d Cir. 1998)) (other quotation omitted).
In determining what a reasonable, paying client would be willing to pay, the Court
considers the following factors:
(1) the time and labor required; (2) the novelty and difficulty of the
questions; (3) the level of skill required to perform the legal service
properly; (4) the preclusion of employment by the attorney due to
acceptance of the case; (5) the attorney's customary hourly rate; (6)
whether the fee is fixed or contingent; (7) the time limitations
imposed by the client or the circumstances; (8) the amount involved
in the case and the results obtained; (9) the experience, reputation,
and ability of the attorneys; (10) the 'undesirability' of the case; (11)
the nature and length of the professional relationship with the client;
and (12) awards in similar cases.
Arbor Hill, 522 F.3d at 186 n.3 (citing Johnson v. Ga. Highway Express, Inc., 488 F.2d 714, 71719 (5th Cir. 1974)).
Additionally, "[p]laintiffs cannot recover for time spent by attorneys completing
administrative tasks . . . 'A court may make [across-the-board percentage] reductions when
attorneys engage in less skilled work, like filing and other administrative tasks [such as] . . .
faxing and mailing documents, making copies, filing, scanning, preparing documents for
electronic filing, electronic file management, binding documents, and Bates stamping.'" Ryan v.
Allied Interstate, Inc., 882 F. Supp. 2d 628, 636 (S.D.N.Y. 2012) (quoting E.S. v. Katonah–
Lewisboro Sch. Dist., 796 F. Supp. 2d 421, 431–32 (S.D.N.Y. 2011)) (other citations omitted).
Furthermore, the Second Circuit's "'forum rule' generally requires use of 'the hourly rates
employed in the district in which the reviewing court sits in calculating the presumptively
reasonable fee.'" Bergerson, 652 F.3d at 290 (quoting Simmons, 575 F.3d at 174). Accordingly,
the Court finds that the prevailing hourly rates for the Northern District of New York are the
appropriate guide for reasonable hourly fees in this case.
Mr. Zelman states that he regularly charges $300.00 per hour as an attorney who "has been
practicing consumer law for over four years, and is now a partner in a two-attorney firm focusing
exclusively on consumer advocacy claims." Dkt. No. 16-1 at 6-7. To support his asserted
$300.00 per hour rate, Mr. Zelman cites two New Jersey cases in which he was awarded an hourly
rate of $300.00 per hour: Manopla v. Bryant, Hodge & Assocs., LLC, No. CIV.A. 13-338 JAP,
2014 WL 793555 (D.N.J. Feb. 26, 2014) and Diena v. MCS Claim Servs., Inc., No. CIV.A.
13-5902 JAP, 2014 WL 5358995 (D.N.J. Oct. 20, 2014). Mr. Zelman also cites an Eastern
District of New York case in which he was awarded an hourly rate of $250 per hour, Tjartjalis v.
Bureau, No. CV 14-1412, 2016 WL 4223493 (E.D.N.Y. Aug. 9, 2016). In this case, Mr. Zelman
has voluntarily reduced his "hourly rate to $250 an hour." Dkt. No. 16-1 at 8. In opposition,
Defendant urges "the Court to award the hourly rate of $200 per hour at the maximum, in
recognition of the routine nature of this case thus far and the lack of skill required to prosecute it,
as well as Plaintiff's counsel's limited years of practice." Dkt. No. 19 at 5.
In the present matter, the Court finds that a rate of $200 per hour is reasonable for Mr.
Zelman considering the prevailing rates in the Northern District of New York, the nature of the
case, and Mr. Zelman's experience. As recently as 2012, the Second Circuit has upheld
determinations that "[t]he prevailing hourly rates in [the Northern District of New York], which
are what a reasonable, paying client would be willing to pay, are $210 per hour for an experienced
attorney [and] $150 per hour for an attorney with more than four years experience." Lore v. City
of Syracuse, 670 F.3d 127, 175 (2d Cir. 2012) (internal quotation marks omitted) (quoting
Bergerson, 652 F.3d at 290). A rate of $200 per hour is reasonable for an attorney with five years
of litigation experience. See Deferio v. Bd. of Tr. of State Univ. of N.Y., No. 5:11-CV-0563, 2014
WL 295842, *8 (N.D.N.Y. Jan. 27, 2014) (rejecting the requested rate of $250 per hour and
awarding an attorney with five years of litigation experience a rate of $200 per hour).
Additionally, New York courts have recently reduced Mr. Zelman's rate to $200 per hour
in FDCPA cases. In 2015, an Eastern District of New York court reduced "the hourly rate for
Zelman to $200" from his requested rate of $300 per hour in an FDCPA case. Nicaisse v. Mel S.
Harris & Assocs., LLC, No. 14-CV-1569, 2015 WL 5561296, *7 (E.D.N.Y. Sept. 19, 2015). In
2016, an Eastern District of New York court again reduced Attorney Zelman's hourly rate to $200
in an FDCPA case. See Nicaisse v. Stephens & Michaels Assocs., Inc., No. 14-cv-1570, 2016 WL
4367222, *9 (E.D.N.Y. June 9, 2016), report and recommendation adopted, 2016 WL 4275687
(E.D.N.Y. Aug. 12, 2016). Therefore, this Court finds that an hourly rate of $200 for Attorney
Zelman is reasonable.1
Moreover, the Court has reviewed the billing entries and finds excessive, redundant, or
otherwise unnecessary hours included in the record. See Dkt. No. 16-3. Mr. Zelman submitted a
printout of his time records stating he expended twenty-three hours litigating this matter. See id.
The records were maintained by his billing software and broken down into six-minute billing
increments. See id.; see also Dkt. No. 16-1.
In its response, Defendant contends that the amount of time Mr. Zelman devoted to this
matter was excessive and argues that "at most 15 hours would be reasonable." Dkt. No. 19 at 6.
Specifically, Defendant takes issue with the following billed entries: (1) August 2, 2016, one hour
billed for completing an application for admission to practice in the Northern District of New
York; (2) September 2, 2016, 0.7 hours billed for completing a civil cover sheet and filing this
case and September 7, 2016, 0.2 hours billed for filing summons returned executed on CM-ECF;
(3) October 17, 2016, 0.2 hours billed for reviewing the Court's individual rules regarding the case
disposition pilot; (4) November 1, 2016, 1.7 hours billed for conducting a meet and confer and
The Court notes that Mr. Zelman relies on Seidenfuss v. Diversified Adjustment Servs.,
Inc., No. 5:15-cv-1210, 2016 WL 1047383, *2 (N.D.N.Y. Mar. 15, 2016), in support of his
requested hourly rate. See Dkt. No. 16-1 at 8. The attorney in that FDCPA case was awarded a
rate of $350.00 per hour. See Seidenfuss, 2016 WL 1047383, at *1-*2. The attorney in
Seidenfuss was admitted to practice before the Court of New York State on September 11, 1974.
See id. at *1. While Mr. Zelman may be a partner in his two attorney firm, his experience is more
commensurate with that of a junior associate and in no way comparable to the plaintiff's attorney
in Seidenfuss who had over forty-two (42) years of experience.
drafting the case management plan; (5) November 10, 2016, 0.5 hours billed for reviewing an
order referring the case to mandatory mediation and reviewing the Local Rules of Practice; (6)
November 11, 2016, 2.8 hours billed for reviewing Defendant's initial disclosure and researching
the "ramifications and legal effect of a partial offer of judgment;" and (7) January 17, 2017, 6.5
hours billed for drafting the present motion and supporting documents and 1.2 hours billed for
additional research for a total of 7.7 hours. See Dkt. No. 19 at 6-8. Having reviewed the parties'
submissions, the Court agrees with Defendant that several of these entries are either excessive or
not properly included in an application for attorney's fees.
First, the Court agrees that Mr. Zelman is not entitled to fees for the time it took for him to
apply for admission to practice in the Northern District of New York. This task is administrative
in nature and could have been billed primarily by non-legal personnel. Further, courts have found
that attorney's fees should only be awarded from the time that the attorney was admitted to
practice before the court where the matter was pending. See, e.g., Shapiro v. Paradise Valley Sch.
Dist. No. 69, 374 F.3d 857, 861 (9th Cir. 2004) (affirming the district court's decision disallowing
attorney's fees prior to the date that the attorney was admitted to practice pro hac vice before the
court). As such, the Court finds that Mr. Zelman is not entitled to attorney's fees for the one (1)
hour billed for his admission to practice.
The Court also agrees with Defendant that Mr. Zelman should not be awarded fees for the
time spent preparing and filing the civil cover sheet and summons. See Lann v. Colvin, No. 14cv-827, 2015 WL 82622223, *1 (W.D. Okla. Nov. 10, 2015) (holding that the preparation and
filing of civil cover sheets and summons is clerical work) (citing cases). As such, the total award
will be reduced by 0.9 hours.
Moreover, the time spent for reviewing the Court's Individual Rules and the Local Rules
regarding the court-ordered mediation process are more in the nature of general education. As
such, the Court finds that this time (0.7 hours) will not be included in the awarded attorney's fees.
See Sunstone Behavioral Health, Inc. v. Alameda Cnty. Med. Ctr., 646 F. Supp. 2d 1206, 1215-16
(E.D. Cal. 2009) (refusing to award fees for time spent familiarizing oneself with the Local Rules)
(citation omitted); see also Perdue v. City Univ. of N.Y., 13 F. Supp. 2d 326, 346 (E.D.N.Y. 1998)
("Although Perdue's attorneys are entitled to reasonable compensation for time spent in
researching employment discrimination law, they should not be fully compensated for their
general education") (citation omitted).
As to the time spent conducting "meet and confer for Case Management Plan" and
reviewing the plan once completed, the Court finds that 1.7 hours is excessive. The Case
Management Plan is stock form provided by the Court. According to Defendant, their own billing
records indicate that they spent 0.3 hours on the phone with Mr. Zelman completing the form. See
Dkt. No. 19 at 8. As such, the Court finds that 0.5 hours is the amount of time that a reasonably
competent attorney would require to complete this task.2
Mr. Zelman has also included 2.8 hours for his review of Defendant's initial disclosures
and Rule 68 Offer of Judgment and for researching "ramifications and legal effect of a partial
offer of judgment." Dkt. No. 16-3 at 2. Defendant contends that this amount of time is excessive
and, considering Mr. Zelman's "acumen within the industry," he should be well-versed in the
ramifications of an offer of judgment. See Dkt. No. 19 at 7. The Court again agrees with
Defendant that the time billed for this work is excessive. Rule 68 offers of judgment are
commonly used in FDCPA cases and, in fact, Attorney Zellman settled such a case in the
The Court notes that Mr. Zelman has several other entries on his time sheet relating to
changes made to and the filing of the Case Management Plan. See Dkt. No. 16-3 at 2. Defendant
has not specifically challenged these entries.
Southern District of New York through a Rule 68 offer just last year. See Kaufman v. National
Recovery Agency, No. 7:15-cv-9355, Dkt. No. 19 (S.D.N.Y. 2016). Accordingly, the Court finds
that, Mr. Zelman will be awarded one (1) hour for the time spent on this entry.
Finally, the Court finds that the time spent for researching and preparing the pending
motion was excessive, not only because of the amount of time spent, but also because it may have
been entirely unnecessary had he attempted to settle the attorney's fees matter with Defendant's
counsel. Initially, the Court finds that 1.2 hours spent researching "FDCPA attorney hourly rates
in the Northern District of New York" is excessive, especially considering Mr. Zelman only cited
to four such cases, none of which were particularly helpful. Considering the simplicity of this
task, the Court finds that 0.5 hours is a reasonable amount of time spent researching the prevailing
rates in the Northern District of New York.
Next, the Court finds that the remaining 6.5 hours spent to draft the pending motion for
attorney's fees and costs is entirely unreasonable. As Defendant notes, the Offer of Judgment
provides that "[r]easonable attorney fees and taxable costs accrued in connection with the abovereferenced claim are to be added to the Judgment as against the Defendant. Said fees and costs
are to be in an amount as agreed by counsel for the parties, or if they are unable to agree, as
determined by the Court, upon Motion. . . .'" Dkt. No. 19 at 8 (emphasis omitted). Attached to its
response, Defendant has provided emails dated December 14, 2016, December 28, 2016, and
January 4, 2017, in which Defendant's counsel contacted Mr. Zelman requesting his billing
summary to negotiate attorney's fees. See Dkt. Nos. 19-2, 19-3, 19-4 and 19-5. Mr. Zelman failed
to respond to these requests and did not attempt to negotiate his fees prior to filing the pending
motion. See Dkt. No. 19 at 8. In response, Mr. Zelman provides nothing but his own conclusory
assertions that, during conversations, Defendant's counsel "made clear that the Defendant did not
intend to pay the fees that Plaintiff would seek, and that a reduced 'settlement' would be sought by
Defendant." Dkt. No. 20 at 10.
The Court does not doubt, especially having reviewed Mr. Zelman's requested hourly rate
and hours spent on this matter, that Defendant would have attempted to settle the attorney's fees
issue for less than the amount requested. Perhaps Mr. Zelman would have found the offer
acceptable. Mr. Zelman, however, declined to participate in this settlement process called for in
the Offer of Judgment and thereby deprived Defendant of the chance to settle this matter without
additional motion practice. The Court would be within its rights to strike all time associated with
this motion for attorney's fees based on Mr. Zelman's refusal to attempt to settle this matter prior
to filing. See Schoolcraft v. City of New York, No. 10 Civ. 6005, 2016 WL 4626568, *13
(S.D.N.Y. Sept. 6, 2016) (finding that, although some courts permit fees and expenses for work
done preparing and filing a motion for fees after the Rule 68 offer of judgment, "they are not
warranted here where Plaintiff's counsel did not attempt to settle the matter prior to filing")
(citation omitted). Since Defendant has only asked that the amount be reduced, the Court will not
strike the entire amount. Rather, the Court shall reduce the 6.5 hours spent on compiling the
pending motion to 2.0 hours, which is a reasonable amount of time to have spent on a simple
attorney's fees application, especially after having already spent 1.2 hours researching the rates for
the Northern District. See Seidenfuss v. Diversified Adjustment Servs., Inc., No. 5:15-CV-1210,
2016 WL 1047383, *3 (N.D.N.Y. Mar. 15, 2016) (stating "it is unreasonable that a third of the
total time [Plaintiff's Attorney] spent on this case was in preparation of his own fee application"
and reducing the total hours spent on the attorney's fees application to 2.0 hours).
Based on the foregoing, the Court grants in part and denies in part Plaintiff's motion for
attorney's fees. Based on the reductions set forth above, Plaintiff is awarded 11.7 hours at the rate
of $200.00 per hour, for a total of $2,340.00 in attorney's fees. See Overcash v. United Abstract
Grp., Inc., 549 F. Supp. 2d 193, 197 (N.D.N.Y. 2008) (finding 11 hours of work reasonable for a
FDCPA case); see also Van Echaute v. Law Office of Thomas Landis, Esq., No. 6:09-CV-1071,
2011 WL 1302195, *4 (N.D.N.Y. Mar. 31, 2011) (reducing an attorney's billed hours from 13.6 to
5 hours after an attorney prepared a complaint, attended a pre-trial conference, negotiated a
settlement and researched an attorney's fee issue in the offer of judgment in an FDCPA case).
In addition to the reasonable attorney's fees, 15 U.S.C. § 1692k(a)(3) provides for costs.
Mr. Zelman has requested $400.00 for the filing fee and $65.00 for service of process fees. See
Dkt. No. 16-1 at 9. These costs are appropriately awarded in FDCPA cases and, therefore, this
aspect of Plaintiff's motion is granted.
After carefully reviewing the entire record in this matter, the parties' submissions and the
applicable law, and for the above-stated reasons, the Court hereby
ORDERS that Plaintiff's motion for attorney's fees (Dkt. No. 16) is GRANTED in part
and DENIED in part; and the Court further
ORDERS that Plaintiff is awarded $2,340.00 in attorney's fees and $465.00 in costs; and
the Court further
ORDERS that the Clerk of the Court shall serve a copy of this Decision and Order on the
parties in accordance with the Local Rules.
IT IS SO ORDERED.
Dated: April 21, 2017
Albany, New York
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