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)

Download PDF
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

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?