Robbins v. Viking Recovery Services LLC

Filing 7

ORDER granting 6 Motion for Default Judgment and awarding damages and costs and fees. Clerk of Court to close case. Signed by Hon. Richard J. Arcara on 5/7/2010. (JMB)

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UNITED STATES DISTRICT COURT W E S T E R N DISTRICT OF NEW YORK E R IC ROBBINS, P la in tiff, D E C IS IO N AND ORDER 0 9 -C V -1 0 3 0 A v. VIKING RECOVERY SERVICES LLC, D e fe n d a n t. IN T R O D U C T IO N P la in tiff Eric Robbins filed a complaint in this case on November 30, 2009, a c c u s in g defendant Viking Recovery Services, LLC, of multiple violations of the F a ir Debt Collection Practices Act ("FDCPA"), 15 U.S.C. 16921692p. Plaintiff s e rve d defendant with a summons and complaint, but defendant failed to answer o r appear. On April 29, 2010, plaintiff filed a motion for default judgment seeking s ta tu to ry damages along with costs and fees. Given the allegations that d e fe n d a n t is deemed to have admitted by default, and given the itemization of c o s ts and fees that plaintiff has submitted, the Court awards damages along with c o s ts and fees as described below. B AC K G R O U N D T h is case concerns defendant's conduct in attempting to collect on an a lle g e d consumer debt. Because defendant did not appear in the case, and because the complaint does not contain a lot of background information, details c o n c e rn in g this debt are not available to the Court. For example, the Court c a n n o t determine from the information available what kind of debt defendant a tte m p te d to collect and whether it communicated that information to plaintiff; w h e th e r plaintiff acknowledges owing any kind of debt, and if so, whether he a g re e s with defendant's characterization of it; and whether the parties dispute the a m o u n t of the debt in question. Nonetheless, the complaint does allege that d e fe n d a n t continually called plaintiff demanding payment for this debt. Defendant's calls included calls to plaintiff's place of employment. At one point, p la in tiff's boss contacted defendant and told defendant not to call plaintiff's place o f employment, to which defendant allegedly replied that it would continue to call a s much as it wanted. W h e n calling plaintiff's place of employment, according to th e complaint, defendant informed plaintiff's coworkers that he owed a debt. Defendant allegedly continues its calls to plaintiff--that is, as of the filing of the c o m p la in t-- a n d has threatened to garnish plaintiff's wages. In the course of c o m m u n ic a tin g with plaintiff, defendant allegedly committed numerous violations o f the FDCPA, including the following: communicating with third parties about the d e b t in question without plaintiff's authorization; placing calls to plaintiff's place of e m p lo ym e n t while knowing that such calls are prohibited; harassing and abusive c o n d u c t toward plaintiff; and threats to take legal action such as garnishment w ith o u t any intent actually to do so. 2 Defendant never answered the allegations in the complaint, let alone within th e time required by Rule 12 of the Federal Rules of Civil Procedure ("FRCP"). Accordingly, plaintiff requested an entry of default on February 18, 2010. The C le rk of the Court filed an entry of default on February 19, 2010. On April 29, 2 0 1 0 , plaintiff filed his motion for default judgment. In the motion, plaintiff did not re q u e s t an evidentiary hearing and did not seek actual damages. Plaintiff instead s o u g h t statutory damages, actual costs, and attorney fees. D IS C U S S IO N L ia b ility "F e d e ra l Rule of Civil Procedure 55 is the basic procedure to be followed w h e n there is a default in the course of litigation. And it tracks the ancient c o m m o n law axiom that a default is an admission of all well-pleaded allegations a g a in s t the defaulting party." Vermont Teddy Bear Co., Inc. v. 1-800 Beargram C o ., 373 F.3d 241, 246 (2d Cir. 2004) (citation omitted). Because defendant n e ve r answered or otherwise challenged the complaint, all allegations in the c o m p la in t are now deemed admitted. Nonetheless, "[w]hile a party's default is d e e m e d to constitute a concession of all well pleaded allegations of liability, it is n o t considered an admission of damages." Greyhound Exhibitgroup, Inc. v. E .L .U .L . Realty Corp., 973 F.2d 155, 158 (2d Cir. 1992) (citations omitted). The C o u rt thus must assess what an appropriate award might be, keeping in mind th a t plaintiff has not requested an evidentiary hearing or actual damages. 3 Pursuant to FRCP 55(b)(2), the Court will exercise its discretion not to schedule a n evidentiary hearing on its own initiative because of the straightforward nature o f plaintiff's request for damages, costs, and fees. S ta tu to ry Damages S e c tio n 1692k(a)(2)(A) of the FDCPA provides for statutory damages of up to $1,000 per plaintiff. See also Savino v. Computer Credit, Inc., 164 F.3d 81, 86 (2 d Cir. 1998) ("All that is required for an award of statutory damages is proof that th e statute was violated, although a court must then exercise its discretion to d e te rm in e how much to award, up to the $1,000.00 ceiling.") (citations omitted). Here, plaintiff seeks the maximum amount of statutory damages given the fre q u e n c y and nature of defendant's harassing conduct. "In determining the a m o u n t of liability in any action under subsection (a) of this section, the court s h a ll consider, among other relevant factors . . . the frequency and persistence of n o n c o m p lia n c e by the debt collector, the nature of such noncompliance, and the e xte n t to which such noncompliance was intentional." 15 U.S.C. 1692k(b)(1). In this case, defendant is deemed to have admitted to making frequent telephone c a lls that harassed plaintiff, that involved third parties without authorization, and th a t targeted plaintiff's place of employment. Defendant's admissions include an a d m is s io n that it explicitly told plaintiff's employer that it did not care whether the e m p lo ye r prohibited such telephone calls. See 15 U.S.C. 1692c(a)(3) ("[A] debt c o lle c to r may not communicate with a consumer in connection with the collection 4 of any debt . . . at the consumer's place of employment if the debt collector knows o r has reason to know that the consumer's employer prohibits the consumer from re c e ivin g such communication."). Given the willful disregard for the FDCPA that d e fe n d a n t has admitted, the Court finds that an award of statutory damages in th e amount of $1,000 is appropriate. Costs and Attorney Fees T h e FDCPA authorizes successful litigants to receive "in the case of any s u c c e s s fu l action to enforce the foregoing liability, the costs of the action, to g e th e r with a reasonable attorney's fee as determined by the court." 15 U.S.C. 1692k(a)(3). The prevailing plaintiff in an FDCPA action is entitled to an award o f reasonable attorneys' fees and expenses regardless of whether any statutory o r actual damages are awarded. See Savino, 164 F.3d at 87; Pipiles v. Credit B u re a u of Lockport, Inc., 886 F.2d 22, 28 (2d Cir. 1989) (citation omitted). As to h o w district courts should calculate attorney fees when such an award is a p p ro p ria te , this Court has noted that A reasonable hourly rate is the "prevailing market rate," i.e., the ra te "prevailing in the [relevant] community for similar services by la w y e rs of reasonably comparable skill, experience, and reputation." Blum v. Stenson, 465 U.S. 886, 896 n.11, 104 S. Ct. 1541, 79 L. Ed. 2d 8 9 1 (1984); see also Cohen v. W. Haven Bd. of Police Comm'rs, 638 F .2 d 496, 506 (2d Cir. 1980) ("[F]ees that would be charged for similar w o rk by attorneys of like skill in the area" are the "starting point for d e te rm in a tio n of a reasonable award."). The relevant community, in tu rn , is the district in which the court sits. Polk v. New York State Dep't o f Corr. Servs., 722 F.2d 23, 25 (2d Cir. 1983). D e te rm in a tio n of the "reasonable hourly fee" requires a c a s e -s p e c ific inquiry into the prevailing market rates for counsel of 5 similar experience and skill to the fee applicant's counsel. Farbotko v. C lin to n County of New York, 433 F.3d 204, 209 (2d Cir. 2005). This in q u iry may include judicial notice of the rates awarded in prior cases, th e court's own familiarity with the rates prevailing in the district, and a n y evidence proffered by the parties. Id. The fee applicant has the b u rd e n of showing by "satisfactory evidence" that the requested hourly ra te is the prevailing market rate. Blum, 465 U.S. at 896 n.11. F o n ta n a v. C. Barry & Assocs., LLC, No. 06-CV-359, 2007 W L 2580490, at *2 (W .D .N .Y . Sept. 4, 2007) (Arcara, C.J.). T h e Second Circuit revisited case law governing attorney fee calculations la s t year and explained that In [Arbor Hill Concerned Citizens Neighborhood Ass'n v. County o f Albany, 493 F.3d 110 (2d Cir. 2007), amended on other grounds by 5 2 2 F.3d 182 (2d Cir. 2008)], we undertook to simplify the complexities s u r r o u n d in g attorney's fees awards that had accumulated over time u n d e r the traditional "lodestar" approach to attorney's fees (the product o f the attorney's usual hourly rate and the number of hours worked, w h ic h could then be adjusted by the court to set "the reasonable fee"), a n d the separate "Johnson" approach (a one-step inquiry that c o n s id e re d twelve specified factors to establish a reasonable fee). 493 F .3 d at 114. Relying on the substance of both approaches, we set forth a standard that we termed the "presumptively reasonable fee." Id. at 1 1 8 . W e directed district courts, in calculating the presumptively re a s o n a b le fee, "to bear in mind all of the case-specific variables that w e and other courts have identified as relevant to the reasonableness o f attorney's fees in setting a reasonable hourly rate." Id. at 117 (e m p h a s is in original). The presumptively reasonable fee boils down to "what a reasonable, paying client would be willing to pay," given that s u c h a party wishes "to spend the minimum necessary to litigate the c a s e effectively." Id. at 112, 118. S im m o n s v. N.Y. Trans. Auth., 575 F.3d 170, 174 (2d Cir. 2009). H e re , counsel for plaintiff have submitted an itemization of hours spent on th is case. In reviewing the affirmations, the Court finds that the hours claimed a p p e a r reasonable. In assessing whether a reasonable, paying client looking to 6 minimize expenses would be willing to pay for the hours claimed here, the Court b e a rs in mind the provision of the FDCPA awarding attorney fees to successful litig a n ts . W ith o u t that provision, a reasonable, paying client likely would not s p e n d more in costs and fees than receive in a statutory damages award. Factoring in that provision, however, a reasonable, paying client likely would e n d o rs e the investment of time that counsel claim here. Counsel spent only 8.6 h o u rs litigating the entire case, less than the time that the Court considered re a s o n a b le in recent FDCPA cases that also ended with a default judgment. See, e.g., Berry v. Nat'l Fin. Sys., Inc., No. 08-CV-18, 2009 W L 2843260, at *5 (W .D .N .Y . Aug. 27, 2009) (Arcara, J.) (approving a claim of 25.1 attorney hours); F o n ta n a , 2007 W L 2580490, at *3 (approving a claim of 22.6 attorney hours and 4 .0 paralegal hours). W h e re a debt collector fails to appear in an FDCPA case, m e a n in g that judgment as to liability is assured and an award of attorney fees is lik e ly, a reasonable, paying client likely would want counsel to prosecute the case to a successful resolution. Because counsel for plaintiff did not explicitly propose any hourly rates to a p p ly to their itemization of hours, the Court will apply the hourly rates used in p rio r FDCPA cases. Recent cases in this District set reasonable attorney rates in d e b t collection cases at $215 per hour for partners, $180 per hour for associates, a n d $50 per hour for paralegals. See Clark v. Brewer, Michaels & Kane, LLC, N o . 09-CV-188, 2009 W L 3303716, at *3 (W .D .N .Y . Oct. 14, 2009) (Arcara, C.J.); 7 Berry v. Nat'l Fin. Sys., Inc., No. 08-CV-18, 2009 W L 2843260, at *6 (W .D .N .Y . A u g . 27, 2009) (Arcara, C.J.); Miller v. Midpoint Resolution Group, LLC, 608 F. S u p p . 2d 389, 395 (W .D .N .Y . 2009) (McCarthy, M.J.). Applying these hourly ra te s yields the following calculations: ! ! ! 3 .6 hours for Adam Krohn at $215 per hour, for a total of $774.00; 1 .5 hours for Adam Hill at $180 per hour, for a total of $270.00; and 3 .5 hours for paralegals at $50 per hour, for a total of $175.00. Total attorney and paralegal fees, accordingly, add up to $1,219.00. Additionally, the Court endorses plaintiff's proposal to include in the amount of d a m a g e s the cost of filing the complaint. All costs and fees thus amount to $ 1 ,5 6 9 .0 0 . Adding in the $1,000 award for statutory damages yields a total d a m a g e s award of $2,569.00. C O N C L U S IO N F o r all of the foregoing reasons, the Court awards plaintiff $1,000 in s ta tu to ry damages and $1,569.00 in costs and fees, for a total of $2,569.00. T h e Clerk of the Court is directed to close this case. SO ORDERED. s/ Richard J. Arcara HONORABLE RICHARD J. ARCARA UNITED STATES DISTRICT JUDGE DATED: May 7, 2010 8

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