Salzer v. Griggs & Associates LLC et al
Filing
46
Opinion and Order: The Court GRANTS in part Plaintiff's Motion 34 and awards attorney's fees to Plaintiff in the amount of $8,195.00. Signed on 04/06/2012 by Judge Anna J. Brown. See attached 9 page Opinion and Order for full text. (bb)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION
MICHAEL SALZER,
3:11-CV-007-BR
Plaintiff,
OPINION AND ORDER
v.
GRIGGS & ASSOCIATES LLC and
JEANILLE LANIER GRIGGS,
Defendants.
BRET A. KNEWTSON
3000 N.W. Stucki Place, Suite 230 M
Hillsboro, OR 97124
(503) 846-1160
Attorney for Plaintiff
JEANILLE LANIER GRIGGS
329 Patchen Avenue, Suite 3C
Brooklyn, NY 11233-2135
(718) 953-8597
Defendant, Pro Se
1 - OPINION AND ORDER
BROWN, Judge.
This matter comes before the Court on Plaintiff Michael
Salzer’s Motion (#34) for Attorney Fees.
For the reasons that
follow, the Court GRANTS in part Plaintiff’s Motion (#34) and
awards attorney’s fees to Plaintiff in the amount of $8,195.00.
BACKGROUND
On January 3, 2011, Plaintiff filed his Complaint in this
Court seeking damages for alleged violations of the Federal Debt
Collection Practices Act (FDCPA), 15 U.S.C. § 1692, et seq., by
Defendant Griggs & Associates, LLC, and Defendant Jeanille Lanier
Griggs.
On May 31, 2011, Plaintiff filed Affidavits of Service
(#5, #6) as to both Defendants.
Neither Defendant filed a timely
appearance.
On July 11, 2011, Plaintiff moved for Entry of Default.
Because Defendants failed to appear, the Court granted
Plainitff’s Motion for Entry of Default against Defendants on
August 26, 2011.
On September 30, 2011, Plaintiff moved for a Default
Judgment seeking $22,000 in actual damages against both
Defendants jointly and severally, statutory damages of $1,000 for
each Defendant, and attorney’s fees and costs.
On October 6,
2011, the Court issued the following Order (#24):
The Court has completed its consideration of
2 - OPINION AND ORDER
Plaintiff's Motion (#17) for Judgment (Default)
and Plaintiff's supporting papers (#18, #19,
#20, #21, #22, and #23). Based on the record,
the Court finds Plaintiff is entitled to
judgment against Defendants Jeanille Lanier
Griggs and Griggs & Associates as follows: for
actual damages of $20,000 against both
Defendants jointly and severally and for $1,000
statutory damages against each Defendant.
Plaintiff's counsel shall prepare and submit to
the Court for its review an appropriate form of
Judgment specifying the awarded damages as set
out herein. With respect to Plaintiff's
request for attorneys' fees and costs, the
Court notes again (see Order #13) that in order
for the Court to consider such a request,
Plaintiff must file a separate Motion pursuant
to Federal Rule of Civil Procedure 54(d) and
provide the information specified in the
court's policies at http://ord.uscourts.gov/
court-policies/message-from-the-court-regarding
-fee-petitions. The current filings do not
include any statement of counsel's experience;
a comparison of counsel's hourly rate to the
Oregon Economic Survey rates; a calculation of
the applicable lodestar; and, based on such
data, an argument supporting a conclusion that
the hourly rate sought is reasonable and the
time spent on each task also was reasonable.
For example, the Court notes counsel has
provided his time sheet with an entry for 1.5
hours of "Estimated time spent on client
communications that were not recorded. The
Court has no basis to determine whether that
assertion is reasonable. . . . Accordingly,
the Court is unable to rule on the request for
attorneys' fees and costs and gives counsel
another opportunity to present a properly
supported Rule 54 Motion for same. Such Motion
must be filed no later than 10/28/2011.
Plaintiff provided the Court with a proposed form of Default
Judgment (#25) on October 17, 2011.
The next day, Defendant
Jeanille Lanier Griggs filed a Motion (Titled: “Reply
Affirmation”)(#26), which the Court construed liberally in its
3 - OPINION AND ORDER
Order (#27) issued on October 20, 2011, as a Motion to Set Aside
the Entry of Default.
The Court set oral argument on the Motion
to Set Aside the Entry of Default, but Defendants did not appear.
At argument on December 20, 2011, the Court denied Defendant’s
Motion to Set Aside Entry of Default and signed Plaintiff’s form
of Judgment.
On January 6, 2012, Plaintiff filed his Motion for Attorney
Fees, and Defendants did not file any response.
STANDARDS
The FDCPA provides for reasonable attorneys’ fees “in the
case of any successful action to enforce [] liability” under the
statute.
15 U.S.C. § 1692k(a)(3).
Generally the Ninth Circuit has adopted a lodestar/multiplier approach for assessing the amount of reasonable attorneys'
fees.
Grove v. Wells Fargo Fin. Cal., Inc., 606 F.3d 577, 582
(9th Cir. 2010).
See also Gates v. Deukmejian, 987 F.2d 1392,
1397 (9th Cir. 1993).
The party seeking an award of fees bears
the burden to produce evidence to support the number of hours
worked and the rates claimed.
United Steelworkers of Am. v.
Retirement Income Plan for Hourly-rated Employees of Asarco,
Inc., 512 F.3d 555, 565 (9th Cir. 2008).
See also Van Gerwen v.
Guarantee Mut. Life Co., 214 F.3d 1041, 1045 (9th Cir. 2000).
When determining the appropriate number of hours to be included
4 - OPINION AND ORDER
in a lodestar calculation, the district court should exclude
hours 'that are excessive, redundant, or otherwise unnecessary.'"
McKown v. City of Fontana, 565 F.3d 1097, 1102 (9th Cir.
2009)(quoting Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)).
The district court has “considerable discretion” in determining
the reasonableness of attorneys’ fees.
Webb v. Ada County,
Idaho, 195 F.3d 524, 527 (9th Cir. 1999).
To determine the lodestar amount, the court may consider the
following factors:
(1) the time and labor required; (2) the
novelty and difficulty of the questions
involved; (3) the skill requisite to perform
the legal service properly; (4) the preclusion
of other employment by the attorney due to
acceptance of the case; (5) the customary fee;
(6) whether the fee is fixed or contingent;
(7) time limitations imposed by the client or
the circumstances; (8) the amount involved 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.
Fischel v. Equitable Life Assur. Soc’y of U.S., 307 F.3d 997,
1007 n.7 (9th Cir. 2002).
“The Court need not consider all . . .
factors, but only those called into question by the case at hand
and necessary to support the reasonableness of the fee award.”
Cairns v. Franklin Mint Co., 292 F.3d 1139, 1158 (9th Cir.
2002)(quoting Kessler v. Assocs. Fin. Servs. Co. of Haw., 639
F.2d 498, 500 n.1 (9th Cir. 1981)).
5 - OPINION AND ORDER
DISCUSSION
Plaintiff seeks an award of $8,635.00 in attorney’s fees for
31.31 hours expended by Plaintiff’s counsel at an hourly rate of
$275 in the successful resolution of this matter.
I.
Reasonable Hourly Rate.
Plaintiff’s counsel, Bret Knewtson, seeks an hourly rate of
$275.
Knewtson states he has practiced in Oregon since 2003, has
represented numerous debtors in FDCPA and other debt-collection
matters, and has had significant successful litigation at the
state and federal levels.
In addition to his practice
experience, Knewtson has taught bankruptcy, debt defense, and
unlawful debt-collection seminars for the Washington and
Multnomah County Bar Associations, for consumer-law groups, and
for the Oregon State Consumer Law Section.
Knewtson has also
authored recent changes to the Oregon State Bar Consumer Law
Barbooks chapters on the Oregon Unlawful Debt Collections
Practices Act and the Fair Credit Billing Act.
Knewtson has
served in every official capacity on the Oregon State Bar
Consumer Law Executive Committee and serves as the local Chair of
1
Counsel’s records show a total of 34.3 hours expended, and
counsel states he is “not including three hours spent on the
default effort,” which should equal 31.3 hours total as opposed
to the 31.4 hours counsel seeks after the three hours is removed.
The Court has adjusted the total time expended to reflect an
accurate redaction of three hours of time expended.
6 - OPINION AND ORDER
the Oregon National Association of Consumer Law Attorneys.
The Court notes the 2007 Economic Survey conducted by the
Oregon State Bar reflects the average billing rate for attorneys
in Portland, Oregon, in 2007 was $244 per hour, and the average
billing rate for an attorney with the same number of years of
experience as Knewtson was $239 per hour.
These rates would
likely be higher if they accounted for Knewtson’s substantial
expertise in FDCPA, bankruptcy, and other debt collection
matters.
For example, practitioners in the area of bankruptcy
law in Portland, Oregon, charge an average of $272 per hour and a
median rate of $285.
On this record, the Court concludes, in the exercise of its
discretion, an hourly rate of $275 is reasonable in light of
Knewtson’s experience.
II.
Reasonable Time Expended.
Plaintiff’s counsel attests he spent 34.3 hours on this
matter to obtain a Judgment for the entirety of the damages
sought in Plainitff’s Complaint.
To support the Motion,
Plaintiff’s counsel provides his billing entries for the work he
performed on this matter.
Plaintiff’s counsel points out that he
is not seeking to be compensated for three hours of time he spent
correcting his initial Motion (#7) for Default Judgment as
directed by the Court in its Order (#13) issued on July 15, 2011.
Thus, Plaintiff seeks a total of 31.3 hours of time expended.
7 - OPINION AND ORDER
The Court has reviewed Knewtson’s billing records and notes
he spent the bulk of his time preparing the Complaint, preparing
the Motion for Entry of Default, responding to Defendant Jeanille
Lanier Griggs’s Motion to Set Aside the Entry of Default, and
drafting the proposed judgment.
The Court finds each of these
tasks was necessary to secure a judgment in favor of Plaintiff
and the amount of time expended was reasonable under the
circumstances.
The Court, however, does not find all of the time expended
by Plaintiff’s counsel to be reasonable.
For example, Knewtson’s
billing entry for 1.5 hours expended on Thursday September 29,
2011, reflects:
“Estimated time spent on client communications
that were not recorded.
Range is between 3 hours estimated max
and one hour estimated min time spent conferring with client.
85% likely that at least 1.5 hrs of unrecorded time spent on
communications with client.”
The Court concludes counsel’s entry
for “estimated unrecorded” time expended is not a reasonable
basis on which the Court may award attorney’s fees.
Accordingly,
the Court disallows 1.5 hours of time from the total 31.3 hours
sought by Plaintiff’s counsel.
In reaching the lodestar amount in this matter, the Court
has also considered the factors set out in Fischel.
The Court
notes Plaintiff’s counsel is a sole practitioner, and, therefore,
the acceptance of the representation of Plaintiff and the
8 - OPINION AND ORDER
performance of the associated work necessarily precluded his
performance of other work.
Plaintiff’s counsel also notes he was
able to secure a Judgment for the full amount of damages sought
by Plaintiff despite the lack of appearance by Defendants.
Plaintiff’s counsel reiterates and the Court takes into account
that he did not include some time necessarily expended.
In light of the foregoing and in the exercise of its
discretion, the Court concludes on this record that the lodestar
amount of $275 per hour for 29.8 hours of time expended is
reasonable.
The Court, therefore, grants Plaintiff’s Motion for
Attorney Fees and awards $8,195.00 to Plaintiff.
CONCLUSION
For these reasons, the Court GRANTS in part Plaintiff’s
Motion (#34) and awards attorney’s fees to Plaintiff in the
amount of $8,195.00.
IT IS SO ORDERED.
DATED this 6th day of April, 2012.
/s/ Anna J. Brown
ANNA J. BROWN
United States District Judge
9 - OPINION AND ORDER
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