JACKSON v. ALLIED INTERSTATE, LLC
Filing
27
OPINION resolving Plaintiff's petition for attorneys fees and costs. Signed by Judge David S. Cercone on 8/5/13. (mwm)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
RICHARD E. JACKSON,
Plaintiff,
v.
ALLIED INTERSTATE, LLC f/k/a
ALLIED INTERSTATE, INC.,
Defendant.
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2:12cv1144
Electronic Filing
OPINION
Plaintiff commenced this action seeking redress for the alleged violation of his rights
under the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692 et seq. Plaintiff
filed notice of acceptance of defendant's second offer of judgment and the Clerk entered
judgment against defendant in the amount of $1,501.00, which was exclusive of fees and costs.
Presently before the court is plaintiff's petition for fees and costs in the amount of $5,180.25.
For the reasons set forth below, the petition will be granted in part and denied in part and an
award will entered in the amount of $5,062.25.
Plaintiff filed his complaint on August 10, 2012, alleging defendant's agents engaged in a
six month course of conduct that was aimed at persuading plaintiff to pay a consumer debt in the
amount of $327.95. The course of conduct involved numerous tactics which allegedly are
prohibited under the FDCPA. These included "continuously and repeatedly contact[ing] Plaintiff
on his home and cellular telephones, seeking and demanding a payment of [the] alleged debt."
Complaint at ¶ 14. These calls became so voluminous that plaintiff began to keep a log of the
calls. Id. at ¶ 15. In ten days in February of 2012 defendant's agents called plaintiff at least 26
times and on certain days called plaintiff's cellular and home telephones more than five times in
a twenty-four hour period. Id. at ¶¶ 18-19. Plaintiff instructed defendant's agents to stop calling
but they ignored his requests and continued in the course of conduct. Id. at ¶¶ 20-12.
Defendant's agents would let the telephone ring three times, hang up and then call back
immediately. Id. at ¶ 22. When plaintiff answered the telephone and defendant's agents engaged
in conversation, they would threaten to report the debt to the credit bureaus, garnish plaintiff's
wages and take legal action against him. Id. at ¶ 23. These threats were made without the legal
authority to pursue such actions and/or without the intent to takes such actions. Id. Defendant
sent multiple collection letters, two of which identified different creditors. Id. at ¶ 24. Plaintiff
sent a written communication to defendant directing its agents to stop calling him "at home, at
work, on my cell or at any other location." Id. at ¶ 25. He also requested validation of the debt.
Id. at ¶ 26. Defendant failed to comply with either request. Id. "Defendant had no lawful
purpose for acting in the [described] manner . . ., and has engaged in similar conduct as to
Plaintiff and other consumers as part of its business model, for the express purpose of increasing
revenue." Id. at ¶ 29.
Defendant mounts a wholesale attack on every aspect of plaintiff's fee petition. The
attack is founded on the general proposition that plaintiff's counsel runs a "volume shop that files
thousands of FDCPA cases a year" and in doing so has targeted defendant on the firm's website
as a repeated and flagrant violator of the FDCPA. This action purportedly is like many others
and reflects nothing more than the generation of a lawsuit on a cookie-cutter assembly line that
utilizes cut-and-paste rehashes of work from prior cases to generate exorbitant fees. Against this
backdrop defendant asserts that "this action was ultimately resolved for nuisance value" and
maintains that both the hourly rates and the amount of time expended are unreasonable under the
circumstances. It repeatedly advocates for drastic reductions in all aspects of the requested fees.
Specifically, defendant asserts that plaintiff's counsel seeks to recover hourly rates that
are excessive and not in line with local market rates. Counsel purportedly has undertaken to
generate fees based on claimed time when in reality many if not all of the filings are "cut-and2
paste" submissions that are recycled from prior cases. These submissions required very little
editing or tailoring to fit the matter at hand. Counsel also responded to defendant's answer by
engaging in premature motions practice, i.e., filing a needless motion to strike defendant's
affirmative defenses. It likewise seeks to collect for an unreasonable amount of work devoted to
pursuing "fees-on-fees" pursuant to a generic fee petition that has been used in numerous cases
nationwide. The claimed entries also seek to recover attorneys fees for administrative, non-legal
tasks such as reading the court's electronic notices and orders on such matters as preparing for
the initial Rule 16 conference, the court's mandatory ADR program, the court's case management
order and so forth. Similarly, plaintiff's counsel have time entries for reading and writing emails
as part of communication and task assignment among themselves and paralegals, which includes
time by a paralegal preparing "form documents" for filing. Defendant maintains that all of these
argued improprieties reveal a course of conduct that warrants the scrutiny of each entry for
which plaintiff's counsel seeks to collect to determine if it represents a reasonable fee or cost that
should be passed on to defendant.
Plaintiff maintains that the fee petition seeks to recover a reasonable fee for a judgment
premised on an admitted violation of federal public policy. He argues that "the idea that [] a
consumer protection law firm should be penalized because it has represented many distressed
consumers against [a] serial violator of consumer rights can only be described as absurd." In this
regard recoveries in the area of consumer protection laws such as the Truth in Lending Act, the
Fair Credit Reporting Act and the FDCPA generally are not high dollar amounts and the failure
to award a reasonable fee essentially would serve to frustrate the public policies Congress sought
to establish and maintain by passing these acts and providing for the recovery of fees upon an
established violation thereof.
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Moreover, plaintiff's counsel argues that the requested hourly rates are reasonable and
have been accepted by other courts. These and very similar rates have been approved by
numerous courts and defendant has failed to cite any persuasive authority to show they are
excessive. Similarly, plaintiff's counsel asserts that even though tasks and submissions are
routine and similar within a particular area of practice, counsel nevertheless have an obligation to
review and tailor each template to the specifics of the case and the entries of time within the
petition reflect only reasonable amounts of time devoted to just such tasks. Communicating,
strategizing and assigning tasks by email is part of today's practice and is not improper or an
otherwise unreasonable method for attorneys to litigate a matter and administrative tasks have
been highlighted and omitted from the fee petition in any event. Plaintiff's counsel posits that
review of the actual entries indicates that each billing entry reflects a very modest entry of time
for the task performed. For example, the highest single entry is for 36 minutes consumed to edit
the 14 page brief submitted in support of the fee petition; the time log was reviewed for
privileged information and appropriate redactions/omissions were made in 24 minutes; a motion
for filing was prepared in 12 minutes and so forth. And all filings or undertakings were
reasonable and appropriate measures when performed. Thus, plaintiff maintains that the petition
should be granted and the requested $5,180.25 should be awarded as a reasonable fee.
The traditional "American Rule" provides that the parties are "ordinarily responsible for
their own attorney’s fees." Truesdell v. Philadelphia Housing Auth., 290 F.3d 159, 163 (3d Cir.
2002). Thus, there is a "general practice of not awarding fees to a prevailing party 'absent
explicit statutory authority.'" KeyTronic Corp. v. United States, 511 U.S. 809, 819 (1994)
(quoting Alyeska Pipeline Serv. Co. v. Wilderness Soc’y, 421 U.S. 240, 262 (1975)). An
exception to the American Rule is established in Section 1692k(a) of the FDCPA, which
provides:
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(a) Amount of damages
Except as otherwise provided by this section, any debt collector who fails to comply with
any provision of this subchapter with respect to any person is liable to such person in an
amount equal to the sum of –
(1) any actual damage sustained by such person as a result of such failure;
(2)(A) in the case of any action by an individual, such additional damages as the court
may allow, but not exceeding $1,000; . . . and
(3) in the case of any successful action to enforce the foregoing liability, the costs of the
action, together with a reasonable attorney's fee as determined by the court. . . .
15 U.S.C. § 1692k(a).
In Hensley v. Eckerhard, 461 U.S. 424 (1983), the Court laid down the general standards
governing the “reasonableness” of an award of attorney’s fees pursuant to any statutory
exception to the American Rule. It explained: “the most useful starting point for determining the
amount of a reasonable fee is the number of hours reasonably expended on the litigation
multiplied by a reasonable hourly rate.” Hensley, 461 U.S. at 433. This figure is commonly
referred to as the “lodestar,” or the guiding light in determining attorney fees.
The lodestar approach was pioneered by the United States Court of Appeals for the Third
Circuit in Lindy Bros. Builders, Inc. of Philadelphia v. American Radiator & Standard Sanitary
Corp., 487 F.2d 161 (3d Cir. 1973), appeal after remand, 540 F.2d 102 (1976), and has “achieved
dominance in the federal courts” after the Court's decision in Hensley. Perdue v. Kenny A. ex
rel. Winn, __ U.S. __, 130 S. Ct. 1662, 1672 (2010). The burden of establishing the
reasonableness of a fee request falls on the plaintiff’s counsel. Hensley, 461 U.S. at 437; accord
Loughner v. Univ. of Pittsburgh, 260 F.3d 173, 178 (3d Cir. 2001) (the “fee applicant bears the
burden of establishing entitlement to an award and documenting the appropriate hours expended
and the hourly rates.”). "When the applicant for a fee has carried his burden of showing that the
claimed rates and number of hours are reasonable, the resulting product is presumed to be the
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reasonable fee to which counsel is entitled.” Loughner, 260 F.3d at 178 (quoting Pennsylvania
v. Delaware Valley Citizens' Council, 478 U.S. 546, 564 (1986) (internal quotation omitted)).
In order to meet this burden the plaintiff’s counsel must present documentation sufficient
to justify the fees. Hensley, 461 U.S. at 433. To enable a meaningful review the fee petitioner
must produce adequate billing records that detail how the time was spent in litigating the
presented claims. Id. at 437. A fee petition should include "some fairly definite information as
to the hours devoted to various general activities, e.g., pretrial discovery, settlement negotiations,
and the hours spent by various classes of attorneys, e.g., senior partners, junior partners,
associates." Lindy Bros., 487 F.2d at 167. However, "it is not necessary to know the exact
number of minutes spent, nor the precise activity to which each hour was devoted nor the
specific attainments of each attorney." Id.; Pawlak v. Greenawalt, 713 F.2d 972, 978 (3d Cir.
1983) (same).
A fee petition is required to be specific enough to allow the district court "to determine if
the hours claimed are reasonable for the work performed." Pawlak, 713 F.2d at 978; Rode v.
Dellarciprete, 892 F.2d 1177, 1190 (3d Cir.1990). Where a petitioner's documentation is
inadequate a court "may reduce the award accordingly." Hensley, 461 U.S. at 433.
The prevailing party's counsel's failure to maintain records that will enable the reviewing
court to calculate a proper award with precision does not preclude an award. Instead, the reliable
information is to be taken into account to make a reasonable estimate of the proper division of
time. See McKenna v. City of Philadelphia, 582 F.3d 447, 455 (3d Cir. 2009) (quoting Hensley,
461 U.S. at 434-35) (affirming a percentage allocation between successful and unsuccessful
claims that were distinct where "[i]n the absence of specific time entries to indicate how the
attorneys spent their time on the distinct claims, the Court reasonably used the information
available to it to estimate a proper division of time."); Hensley, 461 U.S. at 433-36 (Where
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documentation is inadequate and/or the petitioning party enjoyed only partial success, the district
court is not relieved of its obligation to award a reasonable fee and in doing so it may fashion a
reasonable fee based on the reliable information available.); Lanni v. New Jersey, 259 F.3d 146,
151 (3d Cir. 2001) (upholding downward adjustment of twenty-five percent for time spent
pursuing unsuccessful claims).
Against this backdrop, defendant's contention that this action was resolved for "nuisance
value" and the court should assess plaintiff's entitlement to fees based on that valuation is
misplaced. Plaintiff recovered the full amount for a statutory violation and an additional amount
for actual damages. To interpret this recovery as "nuisance value" would essentially be mocking
Congress's determination about the value of conduct deemed to be in violation of federal public
policy and deeming that determination to be nothing more than an annoyance and irritation to the
judicial system. We do not take Congress's determinations of public policy quite so lightly.
Moreover, under § 1692k(a), an award of attorney's fees is not a special or discretionary
remedy. Graziano v. Harrison, 950 F.2d 107, 113 (3d Cir. 1991). Instead, "the Act mandates an
award of attorney's fees as a means of fulfilling Congress's intent that the Act should be enforced
by debtors acting as private attorneys general." Id. (citing Jesus v. Banco Popular de Puerto
Rico, 918 F.2d 232, 235 (1st Cir.1990)). "Indeed, several courts have required an award of
attorney's fees even where violations were so minimal that statutory damages were not
warranted." Id. (citing Pipiles v. Credit Bureau of Lockport, 886 F.2d 22, 28 (2d Cir.1989);
Emanuel v. American Credit Exchange, 870 F.2d 805, 809 (2d Cir.1989); cf. de Jesus, 918 F.2d
at 233-34 (construing the parallel provision of the Truth in Lending Act to mandate a fee award
to a prevailing plaintiff)). Although a court retains the discretion to decline to award statutory
damages in the case of a single, trivial violation of the Act pursuant to the consideration of
certain listed factors, the determination of a reasonable attorney fee is not governed by those
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factors but instead is to be determined by the traditional lodestar method sanctioned by Hensley
and its progeny. Id.
Defendant's contention that the court should look with extreme circumspect on the
portion of plaintiff's petition that seeks to recover for the time spent on preparing the fee petition
likewise is misplaced. Strong public policy considerations underlie a prevailing party's
entitlement to collect fees, including fees-on-fees. In Hernandez v. Kalinowski, 146 F.3d 196,
200 (3d. Cir 1998), the court affirmed the principle that fees-on-fees properly are awarded under
a fee shifting statute in order to prevent the improper erosion of a prevailing party's right to
recover a reasonable fee. Recovery for time spent perfecting a fee award is within the intent of
Congress to permit compensation for all work which is a necessary predicate to obtaining a
reasonable fee for successful claims. Id.; accord Prandini v. Nat'l Tea Co., 585 F.2d 47, 53 (3d
Cir. 1978) ("Indeed, courts have consistently held that attorneys may be awarded, under statutory
fee authorizations, compensation for the expenses of and time spent litigating the issue of a
reasonable fee, i.e., for time spent on the fee application and successful fee appeals."). Recovery
for time spent in pursuit of a successful fee promotes the underlying congressional policy behind
fee shifting statutes by encouraging attorneys to pursue well-grounded claims seeking to
vindicate established congressional policies. Prandini, 585 F.2d at 53 (denial of a fees-on-fees
recovery would run counter to "the purpose behind most statutory fee authorizations, viz, the
encouragement of attorneys to represent indigent clients and to act as private attorneys general in
vindicating congressional policies."). It also serves the salutary purposes of discouraging the
creation of further litigation over fees that are rightfully owed merely to avoid paying a fee until
ordered to do so and encouraging parties to settle fee disputes without resort to trench warfare.
Hernandez, 146 F.3d at 200 (citing Hensley, 461 U.S. at 437 ("A request for attorney's fees
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should not result in a second major litigation. Ideally, of course, litigants will settle the amount
of a fee.").
Defendant's contention that an across-the-boards reduction should be made for all of
counsel's time entries because, for example, the 10 page complaint, the motion to strike, and/or
the fee petition are "nearly" identical to similar filings by the firm in other cases is unpersuasive.
While defendant briefly highlights the total time it attributes to each of these tasks, it does not
identify any particular entry or task that reflects an inordinate amount of time devoted to the
identified undertaking. The ethical and procedural obligations governing counsel's submissions
to the tribunal mandate that counsel exercise caution and strive for accuracy in presenting each
submission into the record. Thus, nothing less than an adequate amount of time devoted to
verification, tailoring, and editing of standard templates is required and the practitioners before
this court are expected to approach their responsibilities with the care and attention to detail
needed to meet those responsibilities.
Defendant has not demonstrated that a significant number of time entries are
unreasonably excessive or inordinate. The court has reviewed the entries and finds them in
general to be reasonable in relation to the tasks undertaken. Consequently, the general reduction
defendant seeks appears to invite this court to error on the side of efficiency for defendant's
benefit even if it comes at the cost of promoting inaccuracy in what the court and the opposing
party receive from counsel. We fail to see the wisdom in such approach or any merit in
defendant's complaints on this score.
In addition to its wholesale attacks, defendant specifically challenges the amount of time
devoted to 1) a motion to strike defendant's answer, 2) the time devoted to preparing the fee
petition, 3) inter-office communications, 4) reviewing electronic notifications reflecting docket
entries and 5) billing for menial and administrative tasks. With the exception of the motion to
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strike, the record indicates that plaintiff's counsels' time entries reflect reasonable amounts of
time being devoted to a reasonable task in furthering or resolving the litigation.
The reasonable use of time has long been a central inquiry in the analysis of a fee petition
and a matter that is subject to scrutiny by one's opponent and review by the court. See e.g.
Hensley, 461 U.S. at 433 ("The most useful starting point for determining the amount of a
reasonable fee is the number of hours reasonably expended on the litigation multiplied by a
reasonable hourly rate."); Rode, 892 F.2d at 1190 (fee petitions should include definite
information as to the hours devoted to the various general activities undertaken and must be
specific enough to allow the court to determine if the hours claimed are reasonable for the work
performed). The calculation is an objective one that seeks to make an initial estimate of the
value of a lawyer's services. Hensley, 461 U.S. at 433. It is designed to be "readily
administrable", produce "objective" results, and permit meaningful judicial review. Perdue, 130
S. Ct. at 1672 .
Defendant's complaints concerning the amount of time devoted to the fee petition are
unavailing. Defendant challenges the 2.8 hours devoted to preparing the fee petition and
supporting brief as unreasonable. But as noted in plaintiff's counsel's reply brief, the most
lengthy billing entry entails 36 minutes for revising a 17 page memorandum of law to include the
specific factual and procedural information about the case, additional case law, accuracy as to the
amounts of time devoted to specific tasks and so forth. A review of the bill to assure no attorney
client privileged communications were being disclosed consumed 24 minutes, preparing the
actual motion consumed 14 minutes, and revising four form certifications to fit the specifics of
the case took 24 minutes. These entries reflect a sufficient level of efficiency in the tasks being
performed. The fee petition and supporting submissions are in large measure a compilation of
tasks that pertain to case-specific information and tasks. That this information and the related
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tasks are quite similar to those generated in other standard FDCPA cases does not make them
repetitive forms that require very little or no edification.1
Defendant's challenge to the billing entries reflecting time devoted to reviewing
electronic case filing notifications and docket entries similarly is misplaced. First, contrary to
defendant's assertion, the fee invoice reflects a number of entries where "ECF" notices were
reviewed by Craig Thor Kimmel and the time was "not billed" due to it being an administrative
task. See e.g. Entries of August 10, 2012, August 23, 2012, October 5, 2012, and October 12,
2012 (Doc. No. 22-1 at 3-5), and so forth. Second, the ECF notices for which time is submitted
reflect either the entry of specific information about/from defendant or the review of this court's
orders and the standard practices and procedures that are to guide counsel in fulfilling those
orders. The court very much expects counsel to be familiar with its programs, standard practices,
case management order and orders scheduling proceedings. Counsel was obligated to
understand such orders, programs and practices and explain them to plaintiff, which they did. To
suggest that such information should not be reviewed by counsel or cast aside as merely an
unimportant administrative task appears at the very least to invite non-compliance and mischief
by uninformed counsel. There is no shortage of such behavior and we need not strive to make it
more prevalent.
Defendant's assertion that the fee invoice reflects an excessive amount of time for internal
email correspondence among counsel/staff and menial tasks is not sufficiently supported in the
1
The fee petition does not reflect the time devoted to plaintiff's reply brief (Doc. No. 25) to
defendant's brief in opposition. This reply brief consists of eleven pages that were compiled to
respond to each of the specific challenges defendant raised to the fee petition. It was both a
necessary predicate to obtaining a reasonable fee for a successful claim and specifically tailored
to a pending matter in a manner that was helpful. The time for this brief could not have been
included when the petition was submitted and to order further development of the record at this
juncture would in all likelihood result in additional submissions that only add to the total
resources consumed in litigating this matter. Consequently, a reasonable estimate of three hours
will be added to attorney Bennecoff's time for this task.
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record. First, counsel are required to discuss the case, assign tasks among themselves and
diligently accomplish those tasks. Using email correspondence to accomplish this is reasonable.
In addition, the fee invoice has been edited to remove a significant number of entries that
primarily reflect administrative tasks. Further, a review of the entirety of the invoice fails to
support defense counsel's assertion that the sheer volume of entries for reading email and menial
tasks is excessive and unreasonable. Thus, specific reductions on these grounds is unwarranted.
Finally, a substantial reduction will be made to the 2.8 hours used to edit and file the
motion to strike. The time for this motion will not be discounted entirely. Defendant filed an
answer that raised a number of highly questionable defenses and at that time there was no
understanding among counsel that the case was close to being resolved. Under these
circumstances counsel cannot be faulted for taking action that was grounded in sound litigation
strategy. Nevertheless, the claimed time for this motion was excessive given that the motion did
track almost verbatim the same filing in other cases. Approximately two pages and a paragraph
or two were edited to reflect the facts of this case. Otherwise, the template for the motion had to
be reviewed to assure its accuracy with the matters at hand. While it appears that the attorney
who performed this undertaking may have spent time becoming familiar with the record, such an
undertaking is well beyond the review that properly is attributed to preparing the motion.
Consequently, the total time will be reduced by 1.5 hours, thus permitting 1.3 hours for the
review, drafting of the particulars for the case and assuring the remaining aspects of the template
were accurate.2
2
Plaintiff's counsel's billing record also reflects the devotion of 2.5 hours to these same tasks by
Caroline Diehl. Ms. Diehl was a law student at the time and it appears that she likewise used
most of the time to become familiar with the case. This time will be excluded for the same
reasons attorney Gentilcore's is being reduced and because Ms. Diehl was not an experienced
attorney or paralegal.
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Notwithstanding all of the above, the court will make a general reduction of 10% of the
permitted time to capture ineffective use of time, the overlap from counsels' discussions and any
administrative activities included within the necessary undertakings by counsel. Such a
reduction assures that any actual inefficiency, overlap, redundancy, administrative task by
counsel and/or menial task is eliminated from the amount properly billed to and collected from
defendant.
Once an appropriate number of hours can be determined, “a reasonable hourly rate is to
be calculated according to the prevailing market rates in the relevant community.” Rode, 892
F.2d at 1183. When determining a reasonable hourly rate the court should “assess the experience
and skill of the prevailing party’s attorneys and compare their rates to the rates prevailing in the
community for similar services by lawyers of reasonably comparable skill, experience and
reputation.” Id. at 1183.
Plaintiff's counsel request the following rates: Craig Thor Kimmel - $300.00 per hour;
Tara L. Patterson - $250.00 per hour; Amy L. Bennecoff - $ 200.00 per hour; Joseph L.
Gentilcore - $200.00 per hour; Jason Ryan - $110.00 per hour; and Katelyn Fitti - $110.00 per
hour. Attorney Kimmel is a founding partner of the law firm Kimmel and Silverman, P.C., and
has over 22 years of experience in representing plaintiffs in consumer-based litigation. Attorney
Patterson is an associate with 12 years of legal experience which includes 5 years with the
Pennsylvania Governor's Office of General Counsel in the State Police Division and 3 years with
that office in the Pennsylvania Board of Probation and Parole as assistant counsel. Attorney
Bennecoff is a senior attorney with over 7 years of experience that includes experience in
personal injury and medical malpractice, land-lord tenant and bankruptcy as well as 5 years of
experience primarily handling FDCPA cases in a significant number of jurisdictions. Attorney
Gentilcore is an associate who was hired in January of 2011 as a law clerk and became a
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practicing attorney with the firm in October of 2011. Jason Ryan and Katelyn Fitti are both
paralegals.
In support of the proposed rates plaintiff's counsel has submitted a declaration from
attorney James M. Pietz that was submitted in a class action brought in this district pursuant to
the FDCPA. The action was filed in 2008 and the declaration was submitted to Judge Ambrose
on November 14, 2008. Attorney Pietz sought an hourly rate of $410.00 and his co-counsel,
attorney Jeffery Suher, sought an hourly rate of $350.00. These rate requests were supported by
rates awarded in other class action lawsuits in the Middle District and the Eastern District
involving consumer protection claims. The awarded hourly rates reflected ranges from $550.00
for partners to $335.00 for associates in one case and $440.00 for partners to $195.00 for
associates in another. Also, the National Law Journal Billing Survey reflected general hourly
rates in the Pittsburgh market ranging from a high of $790.00 for a partner to a low of $150.00
for an associate.
Plaintiff's counsel also document their success in obtaining their requested rates in the
neighboring districts of the Northern District of Ohio and the Middle District of Pennsylvania,
and their obtaining hourly rates mainly above those requested in the Eastern District of
Pennsylvania and the District of New Jersey. Finally, they note that similar rates have been
sought in a Fair Credit Reporting case and civil rights cases in this district and are well within the
ranges employed at the law firm representing defendant.
Defendant cites to Conklin v. Pressler & Pressler, LLP, 2012 WL 569384 (D.N.J. Feb.
21, 2012), where Judge Wolfson reduced plaintiff's counsel's requested rates, as support for the
proposition that counsel's rates have been reduced on a number of occasions. It also notes that in
Zavodnick v. Gordon & Weisberg, P.C., 2012 WL 2036493 (E.D. Pa. June 6, 2012), the court
reduced counsel's requested rates from $425.00 to $290.00 for attorney Kimmel, $300.00 to
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$200.00 for attorney Bennecoff, $300.00 to $200.00 for attorney Patterson, and $150.00 to
$100.00 for paralegals. Id. at *5-6. Defendant does not cite any cases from the Western District
to support its position that the requested rates are excessive when compared to the prevailing
rates in the Pittsburgh market.
The hourly rates requested by plaintiff's counsel are reasonable and in line with the
prevailing market rates in the Pittsburgh market. Defendant essentially seeks a reduction on the
premise that Judge Diamond of the Eastern District reduced the Kimmel Law Firm's requested
rates to rates consistent with the rates currently requested by the law firm in this district and the
Eastern District historically has commanded a higher hourly rate; therefore, the firm's rates
should be significantly reduced in the instant manner. What defendant overlooks is the
difference between the rates requested in Zavodnick and the adjusted hourly rates plaintiff's
counsel request in this matter. The authority advanced by defendant does not demonstrate with
any persuasive force that the requested rates are excessive when compared with the prevailing
rates in Pittsburgh. And the information available about the local market rates for the work
involved supports plaintiff's counsels' requested rates. We see no basis for a further reduction.3
In light of the above, the following amounts will be awarded.
Attorney Kimmel:
$1,980.00
Attorney Patterson:
1.8 hours @ $250.00 per hour
$ 450.00
Attorney Bennecoff: 3.6 hours @ $200.00 per hour
$ 720.00
Attorney Gentilcore: 3.2 -1.5 =1.7 hours @ $200.00 per hour
3
6.6 hours @ $300.00 per hour
$ 340.00
Defendant concludes this section of its brief as follows: "[a]ccordingly, this Court should
follow the lead established in the numerous Kimmel Firm cases cited above and reduce the firm's
claimed hourly rates so that those rates align with other recent fee awards in Kimmel Firm
FDCPA cases." The irony in this proposed approach is that it would result in hourly market rates
that essentially would be the rates requested: $300.00/290.00 for attorney Kimmel;
$250.00/200.00 for attorney Patterson; $200.00/200.00 for attorneys Bennecoff and Gentilcore;
and $110.00/100.00 for paralegals Ryan and Fitti.
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Paralegal Fitti:
7.6 hours @ $110.00 per hour
$ 836.00
Paralegal Ryan:
.4 hours @ $110.00 per hour
$ 44.00
Total:
$4,370.00
Less 10 percent reduction
($437.00)
Adjusted Total:
$3,933.00
In addition, costs in the amount of $529.25 and 3 hours for attorney Bennecoff to draft the reply
brief in support of the petition for fees will be awarded. This results in an award of $4,533.00 in
attorneys fees and $529.25 in costs, for a total award of $5,062.25 (($3,933.00 + $529.25 +
$600.00 = $5,062.25).4
For the reasons set forth above, plaintiff's petition will be granted in part and an award
will be entered in the amount of $5,062.25. An appropriate order will follow.
Date: August 5, 2013
s/ David Stewart Cercone
David Stewart Cercone
United States District Judge
cc:
Craig T. Kimmel, Esquire
Thomas M. Pohl, Esquire
(Via CM/ECF Electronic Mail)
4
The billing for law clerk Lara Dellegrotti has been excluded for the reasons Caroline Diehl's
time has been excluded.
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