Lamont v. Jakoby Law Firm, P.C., et al
Filing
45
OPINION and ORDER - Lamont's motion 38 for attorney fees in the amount of $2,565.00 is GRANTED. DATED this 29th day of April, 2015, by United States Magistrate Judge John V. Acosta. (peg)
UNITED STATES DISTRICT COURT
DISTRICT OF OREGON
PORTLAND DIVISION
SCOTT LAMONT,
Case No.: 3:14-cv-809-AC
Plaintiff,
OPINION AND ORDER
v.
THE JAKOBY LAW FIRM, P.C., a
Colorado Corporation dba LUKEHART
AND ASSOCIATES, P.C.,
Defendant.
___________________________________
ACOSTA, Magistrate Judge:
Introduction
Plaintiff Scott Lamont (“Lamont”) filed this action against the Jakoby Law Firm, P.C., dba
Lukehart & Associates, P.C. (“Jakoby”) for violations of the Fair Debt Collection Practices Act (the
“Act”). The court entered a default judgment, awarding Lamont $5,000 in actual damages with
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interest accruing at a rate of 10 %. Lamont now seeks attorney fees in the amount of $2,565.00. The
court finds this amount is reasonable and grants Lamont’s motion for attorney fees.1
Background
Lamont filed this action on May 16, 2014. After obtaining an extension of time to answer
Lamont’s complaint, Jakoby filed its answer on August 20, 2014. The parties attended an in-person
Rule 16 conference on September 10, 2014, during which pretrial deadlines were discussed and
extended. Shortly thereafter, the parties filed consents to jurisdiction by a magistrate judge. On
November 17, 2014, counsel for Jakoby filed a motion to withdraw from representation indicating
Jakoby would represent itself in all future matters. Subsequently, based on representations from
Jakoby’s counsel made during a telephone conference on December 8, 2014, that Jakoby had
dissolved as a business entity, Jakoby’s answer may be stricken, and Lamont may move for an order
of default, the court granted Jakoby’s motion to withdraw. Lamont immediately sought an order of
default against Jakoby, which the court granted on December 11, 2014. On January 29, 2015,
Lamont filed a motion for default judgment in the amount $5,000, plus attorney fees and costs. The
court entered a default judgment in favor of Lamont and against Jakoby on February 24, 2015, and
directed Lamont to file his petition for costs and fees no later than March 24, 2015. Currently before
this court is Lamont’s motion for attorney fees.2 Jakoby has not filed objections.
Legal Standard
The Act provides that any debt collector who fails to comply with its provisions is liable “in
1
The parties have consented to jurisdiction by magistrate judge in accordance with 28 U.S.C.
§ 636(c)(1).
2
The court granted Lamont’s application to proceed in forma pauperis in this action.
Accordingly, Lamont did not incur, and did not seek recovery of, costs.
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the case of any successful action . . . [for] the costs of the action, together with a reasonable
attorney’s fee as determined by the court.” 15 U.S.C. § 1692k(a)(3). This language makes an award
of fees mandatory. Evon v. Law Offices of Sidney Mickell, 688 F.3d 1015, 1032 (9th Cir. 2012).
In determining what amount is “reasonable,” courts first “calculate the ‘lodestar figure’ by
taking the number of hours reasonably expended on the litigation and multiplying it by a reasonable
hourly rate.” Fischer v. SJB-P.D. Inc., 214 F.3d 1115, 1119 (9th Cir. 2000). The court must then
decide whether to enhance or reduce the figure by evaluation the factors discussed in Kerr v. Screen
Extras Guild, Inc., 526 F.2d 67 (9th Cir. 1975), that were not already considered in calculation of
the lodestar figure. The Kerr factors include:
(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.
Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 70 (9th Cir. 1975). Only those factors that are
applicable must be addressed. Sapper v. Lenco Blade, Inc., 704 F.2d 1069 (9th Cir. 1983).
“[T]here is a ‘strong presumption’ that the lodestar figure is reasonable, but that presumption
may be overcome in those rare circumstances in which the lodestar does not adequately take into
account a factor that may be properly considered in determining a reasonable fee.” Perdue v. Kenny
A., 559 U.S. 542, 554 (2010). The district court has “considerable discretion” in determining the
reasonableness of a fee award. Webb v. Ada County, 195 F.3d 524, 526-7 (9th Cir. 1999).
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Discussion
I. Reasonable Hourly Rate
A reasonable hourly rate is determined by looking to the “prevailing market rates in the
relevant community” as well as the skill, experience, and reputation of the lawyer. Blum v. Stenson,
465 U.S. 886, 895 (1984) The party requesting the fees “has the burden of producing satisfactory
evidence, in addition to the affidavits of its counsel, that the requested rates are in line with those
prevailing in the community for similar services of lawyers of reasonably comparable skill and
reputation.” Jordan v. Multnomah County, 815 F.2d 1258, 1263 (9th Cir. 1987). The best evidence
of the prevailing rate in Oregon is the periodic Economic Survey conducted by the Oregon State Bar.
Roberts v. Interstate Distrib. Co., 242 F. Supp. 2d 850, 857 (D. Or. 2002).
Lamont’s counsel, Shannon Sims (“Sims”) seeks $225.00 per hour for time spent on
Lamont’s claim. Sims was admitted to the Oregon State Bar in 2007 and has primarily represented
consumers in Portland, Oregon, for the past six years. The Oregon State Bar 2012 Economic Survey
reveals the average hourly rate billed by attorneys in private practice in Portland, Oregon, is $284.
A Portland attorney with seven to nine years experience bills at an average of $258 per hour, while
a Portland attorney specializing in representing plaintiffs in commercial litigation bills at an average
of $266 per hour. Sims hourly billable rate of $225 per hours is at the 25th percentile for attorneys
with seven to nine years experience and is slightly above the 25th percentile for those involved in
plaintiff’s commercial litigation ($205). The court finds the hourly billing rate requested for Sim’s
services is reasonable in light of his experience and the billing rates of comparable attorneys in the
Portland area.
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II. Hours Reasonably Expended
The party seeking the award of fees must submit evidence to support the number of hours
worked. Van Gerwen v. Guarantee Mut. Life Co., 214 F.3d 1041, 1045 (9th Cir. 2000).
Fee
petitions which include inadequate detail or that fail to separate time for individual tasks may be
totally or partially denied, or apportioned accordingly. Lyon v. Chase Bank USA, N.A., 656 F.3d 877,
892 (9th Cir. 2011); Dry Creek Landfill, Inc. v. Waste Solutions Group, Inc., No. CV-04-3029-ST,
2007 WL 710214, at *5 (D. Or. Mar. 6, 2007). “A district court should exclude from the lodestar
amount hours that are not reasonably expended because they are ‘excessive, redundant, or otherwise
unnecessary.’” Van Gerwen, 214 F.3d at 1045 (citation omitted). Reasonable time spent in preparing
a fee petition is generally recoverable. Guerrero v. Cummings, 70 F.3d 1111, 1112 (9th Cir. 1995).
Sims represents he spent 11.4 hours on this matter. The majority of his time was spent
drafting the complaint and the motion for default judgment. The 2.5 hours researching and drafting
the initial complaint is reasonable. Similarly, the 4 hours preparing the motion for default judgment,
which included a memorandum and two affidavits supporting the motion, as well as a meeting with
Lamont, is also reasonable. The remaining 4.9 hours involved meetings with Lamont and opposing
counsel; court appearances; preparing a motion to extend the time for Jakoby to file an answer; and
drafting initial discovery requests, a response to Jakoby’s motion to withdraw, and a motion for entry
of default. Again, the court finds the time expended on these tasks was reasonable.
III. Additional Kerr Factors
Sims notes the existence of additional Kerr factors supporting the fee request. Specifically,
the contingent nature of the fee and Sim’s significant experience in consumer debt litigation. The
court finds these factors support the reasonableness of the requested rate of $225.00 per hour.
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Conclusion
Lamont’s motion (#38) for attorney fees in the amount of $2,565.00 is GRANTED.
DATED this 29th day of April, 2015.
/s/ John V. Acosta
JOHN V. ACOSTA
United States Magistrate Judge
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