Taylor v. Bettis, et al

Filing 136

ORDER granting in part and denying in part 127 Motion for Attorney Fees. Signed by Senior Judge W. Earl Britt on 9/12/2017. (Edwards, S.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
SOUTHERN DIVISION
SHARON SOUTHWOOD, for herself and
all others similarly situated,
Plaintiffs,
v.
CCDN, LLC, a Nevada limited liability
company; R.K. LOCK & ASSOCIATES,
an Illinois general partnership d/b/a Credit
Collections Defense Network or CCDN;
ROBERT K. LOCK, JR., ESQ.;
COLLEEN LOCK; and PHILIP M.
MANGER, ESQ.,

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Defendants.
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_____________________________________ )
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CHRIS TAYLOR; WILLIAM G.
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HARRISON, SR.; LINDA SHERYL
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LUCAS; CATHY HORTON HUNT;
SHARON SOUTHWOOD; and DORMAN )
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and BRENDA BEASLEY, for themselves
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and all others similarly situated,
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Plaintiffs,
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v.
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CCDN, LLC; LEGAL DEBT CURE, LLC, )
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a Nevada limited liability company;
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BARRISTER LEGAL SERVICES, P.C.;
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DEBT JURISPRUDENCE, INC.; AEGIS
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CORPORATION; RICHARD JUDE
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WASIK; RODNEY EMIL BRISCO; M.
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DAVID KRAMER; MARCIA M.
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MURPHY; and PHILIP M. MANGER,
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Defendants.
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_____________________________________ )

No. 7:09-CV-81-BR

No. 7:09-CV-183-BR

ORDER
Before the court is the motion for attorney’s fees of Sharon Southwood, Chris Taylor,
William G. Harrison, Cathy Horton Hunt, and Dorman and Brenda Beasley (collectively,
“plaintiffs”) pursuant to the Racketeer and Corrupt Organizations Act (“RICO”), 18 U.S.C. §
1964(c), the Credit Repair Organizations Act (“CROA”), 15 U.S.C. § 1679g(a)(3), and the North
Carolina Unfair and Deceptive Trade Practices Act (“UDTPA”), N.C. Gen. Stat. § 75-16.1. (DE
# 127.)1
I.

BACKGROUND

The relevant factual allegations and procedural history are set forth in prior court orders
and a memorandum and recommendation. (See, e.g., DE # 120.) The court summarizes here
only the background essential to the resolution of the pending motion. This consolidated action
was brought in 2009 against, inter alia, CCDN, LLC (“CCDN”), R.K. Lock & Associates, Aegis
Corporation, Robert K. Lock, Jr., Colleen Lock, and Philip M. Manger (collectively,
“defendants”). Plaintiffs alleged defendants engaged in fraudulent debt invalidation schemes
that purported to eliminate the debt of CCDN’s customers and restore their credit ratings. As
alleged by plaintiffs, defendants instructed plaintiffs to stop repaying credit card debt and
claimed in so doing, debt collectors would undertake actions in violation of the Fair Debt
Collection Practices Act (“FDCPA”). The scheme falsely promoted the idea that simply filing
lawsuits based on FDCPA violations allowed customers to erase their debts and win courtawarded damages from debt collectors.
On 7 April 2016, Senior United States District Judge James C. Fox found plaintiffs
sufficiently pled federal and state claims against defendants, including claims under RICO, the

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Docket entries refer to Case No. 7:09-CV-183-BR.

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CROA and the UDTPA, and concluded plaintiffs were entitled to default judgment. (DE # 121.)
Judge Fox reserved entering judgment, however, pending submission of a Notice of Election of
Remedy by plaintiffs Southwood, Taylor, Harrison, and Hunt. (See DE # 122.) On 26
September 2016, judgment in favor of plaintiffs was entered against defendants for damages and
litigation costs, including reasonable attorney’s fees in an amount to be determined upon
submission of proper documentation. (DE # 124.) On 26 October 2016, plaintiffs filed the
instant motion.
II.

DISCUSSION

Plaintiffs request an attorney’s fee award totaling $78,600 – $44,400 in Case. No. 7:09CV-81-BR (the “Southwood Action”) and $34,200 in Case No. 7:09-CV-183-BR (the “Taylor
Action”). The verified motion reflects that counsel, Christopher Livingston (“Livingston”),
expended 222 hours in the Southwood Action and 171 hours in the Taylor Action, for a total of
393 hours at a billing rate of $200.
Under the CROA, RICO and the UDTPA, a successful plaintiff is entitled to
“reasonable” attorney’s fees. See 15 U.S.C. § 1679g(a)(3); 18 U.S.C. § 1964(c); N.C. Gen. Stat.
§ 75-16.1. The determination of a reasonable attorney’s fee award involves a three-step process.
McAfee v. Boczar, 738 F.3d 81, 88 (4th Cir. 2013), as amended (Jan. 23, 2014). First, the court
calculates the lodestar amount (reasonable hourly rate multiplied by hours reasonably expended).
Id. In making the lodestar determination, the court “appl[ies] the Johnson/Barber factors.”
Grissom v. The Mills Corp., 549 F.3d 313, 320 (4th Cir. 2008) (citing Johnson v. Ga. Highway
Express, Inc., 488 F.2d 714, 717–19 (5th Cir. 1974), and Barber v. Kimbrell’s, Inc., 577 F.2d
216, 226 (4th Cir. 1978)). The Johnson/Barber factors are:
(1) [t]he time and labor expended; (2) the novelty and difficulty of the questions
raised; (3) the skill required to properly perform the legal services rendered; (4)
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the attorney's opportunity costs in pressing the instant litigation; (5) the customary
fee for like work; (6) the attorney's expectations at the outset of the litigation; (7)
the time limitations imposed by the client or circumstances; (8) the amount in
controversy and the results obtained; (9) the experience, reputation, and ability of
the attorney; (10) the undesirability of the case within the legal community in
which the suit arose; (11) the nature and length of the professional relationship
between attorney and client; and (12) attorneys' fees awards in similar cases.
McAfee, 738 F.3d at 88 n.5 (citation omitted). After calculating the lodestar figure, the court
must then subtract fees for time spent on any unsuccessful claims unrelated to successful claims.
Id. at 88. Finally, the court awards some percentage of the remaining amount, depending on the
degree of success enjoyed by the plaintiff. Id.
To determine the reasonableness of the hourly rate claimed, the court looks to “the
prevailing market rates in the relevant community,” McAfee, 738 F.3d at 91 (internal quotation
marks and citation omitted), for similar work performed by attorneys of “reasonably comparable
skill, experience, and reputation,” Blum v. Stenson, 465 U.S. 866, 895 n.11 (1984). “[T]he
burden rests with the fee applicant to establish the reasonableness of a requested rate.” Grissom,
549 F.3d at 321. The documentation filed in support of the motion includes Livingston’s resume
outlining his background and qualifications, including fourteen years of experience in consumer
advocacy. (DE # 129, at 10.) It also includes an affidavit of attorney Henry Clifton Hester
wherein he attests to his familiarity with Livingston’s legal skills and to the reasonableness of
Livingston’s billing rate in the relevant market. (DE # 129-1.) The court finds Livingston’s
billing rate is reasonable.
The court carefully reviewed the billing entries in this case. Plaintiffs’ numerous federal
and state law claims revolved around a similar set of facts, allegations and evidence; thus, no
entries exist for unrelated claims. Nevertheless, the court finds a reduction of total billable hours
is warranted based on other grounds. First, some of the entries represent duplicative work. See
Hensley v. Eckerhart, 461 U.S. 424, 434 (1983) (stating a court should exclude hours that are
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“excessive, redundant, or otherwise unnecessary”). In particular, the numerous filings in the
Southwood Action were substantively similar to those in the Taylor Action, including the
complaints, the responses to motions to dismiss, and the motions for class certification. Also,
some of the entries in the Southwood Action concern vague tasks, including 60 hours attributed
to “voluminous exhibits and memos for receivership” and eight hours attributed in part to
“additional research.” (Mot., DE # 127, at 2.) Finally, in the Taylor Action, the fifty and forty
hours attributed to the “complaint” and the “amended complaint,” respectively, are excessive and
unnecessary. Numerous paragraphs in the 127-page complaint and in the 158-page amended
complaint constitute legal conclusions or arguments as opposed to factual allegations. Thus, the
court finds a fifteen percent reduction of Livingston’s billable hours is appropriate. See Fox v.
Vice, 563 U.S. 826, 838 (2011) (stating “trial courts may take into account their overall sense of
a suit, and may use estimates in calculating and allocating an attorney’s time”). Accordingly, the
court reduces Livingston’s entries in the Southwood Action by 33 hours, from 222 hours to 189
hours, and in the Taylor Action by 26 hours, from 171 to 145 hours, for a total of 334 billable
hours.
At the approved rate of $200 an hour, Livingston’s reasonable and compensable entries
total $66,800 ($37,800 in the Southwood Action; $29,000 in the Taylor Action). In reaching this
figure, the court considered the time and labor expended, the difficulty of the questions raised,
the skill required, the amount in controversy, the results obtained and the undesirability of the
case within the legal community in which the suit arose. The other Johnson/Barber factors are
not particularly relevant in this case.

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III.

CONCLUSION

For the foregoing reasons, it is hereby ORDERED, ADJUDGED, and DECREED that:
1. Plaintiffs’ motion for attorney’s fees (DE # 127) is GRANTED IN PART and DENIED
IN PART;
2. Plaintiff Sharon Southwood have and recover of defendants CCDN, LLC, R.K. Lock &
Associates, Robert K. Lock, Jr., Colleen Lock, and Philip M. Manger, jointly and severally,
attorney’s fees in the amount of $37,800;
3. Plaintiff Chris Taylor have and recover of defendant CCDN, LLC or defendant Philip M.
Manger attorney’s fees in the amount of $7,250;
4. Plaintiff William G. Harrison have and recover of defendants Aegis Corporation and
CCDN, LLC, jointly and severally, or of defendant Philip M. Manger attorney’s fees in the
amount of $7,250;
5. Plaintiff Cathy Horton Hunt have and recover of defendant CCDN, LLC or defendant
Philip M. Manger attorney’s fees in the amount of $7,250;
6. Plaintiffs Dorman and Brenda Beasley have and recover of defendant CCDN, LLC or
defendant Philip M. Manger attorney’s fees in the amount of $7,250; and
7. The Clerk is DIRECTED to enter judgment in both actions consistent with this order.
This 11 September 2017.

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W. Earl Britt
Senior U.S. District Judge

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