Denton v. PennyMac Loan Services, LLC et al

Filing 58

OPINION AND ORDER granting 43 Motion for Attorney Fees & Costs; dismissing as moot 56 Motion for Leave to File Supplemental Authority. The Court GRANTS Plaintiff's motion for attorney's fees and costs, and hereby AWARDS attorney 9;s fees to Plaintiff in the amount of $33,718.50, and AWARDS costs to Plaintiff in the amount of $100.00, but DENIES all other requested costs. ECF No. 43. Finally, the Court DISMISSES as MOOT Plaintiff's motion for leave to file supplemental authority. ECF No. 56. Signed by District Judge Mark S. Davis on 5/12/17 and filed on 5/15/17. (tbro)

UNITED

STATES

DISTRICT

COURT

EASTERN DISTRICT OF VIRGINIA

Newport News Division

DAVID D.

DENTON,

Plaintiff,
Civil Action No.

V.

PENNYMAC LOAN SERVICES,

4:16cv32

LLC.,

Defendant.

OPINION AND

This

matter

is

before

the

ORDER

Court

on

a

motion

seeking

attorney's fees^ and costs, ECF No. 43, and a motion for leave to
file
David

supplemental
D.

attorney's

Denton

fees

Reporting Act,

upon

ECF

("Plaintiff").

and costs
15 U.S.C.

Plaintiff's

Judgment.

authority,

is

No.

56,

Plaintiff's

by

Plaintiff

motion

for

filed pursuant to the Fair Credit

§§ 1681o(a)(2)

acceptance

filed

of

and 1681n(a)(3),

Defendant's

For the reasons discussed below.

seeking attorney's fees and costs is GRANTED,

Rule

68

based

Offer

of

Plaintiff's motion
but the amount of

^ The Court notes that the Fair Credit Reporting Act uses the phrase
"attorney's fees," 15 U.S.C. § 1681o{a)(2), and thus the Court will use this
statutory terminology throughout this Opinion.
See Marek v. Chesny, 473 U.S.
1, 8 (1985) ("attorney's fees").
However, the Court is aware that multiple
other terms have been used to describe attorney's fees.
See, e.g., Hensley
V. Eckerhart, 461 U.S. 424, 429 (1983) ("attorney's fee"); Grissom v. The
Mills Corp., 549 F.3d 313, 318 (4th Cir. 2008) ("attorney fees"); Barber v.
Kimbrell's, Inc., 577 F.2d 216, 226 (4th Cir. 1978)
("attorneys' fees").

Even Black's Law Dictionary has listed this phrase differently in different
editions.
Compare, Black's Law Dictionary 148 (9th ed. 2004)
(giving a
definition for "attorney's fees"), with Black's Law Dictionary (10th ed.
2014) (giving a definition for "attorney's fee").

such

award

is

less

than

Plaintiff

requested,

and

Plaintiff's

motion for leave to file supplemental authority is DISMISSED as
MOOT.

I. Factual and Procedural Background

On May 2,

2016,

Plaintiff filed a complaint against Equifax

Information Services,

Trans

Union,

LLC

Loan Services,
Federal

Fair

LLC,

Experian Information Solutions,

{''Credit

LLC

Reporting

Agencies")/

and

Inc.,

PennyMac

("Defendant")/^ alleging a violation of the

Credit

Reporting

Act,

15

U.S.C.

§

1681,

et

seq.

Compl. K 1, ECF No. 1.

According to Plaintiff, while acting as

his

Defendant

mortgage

Credit

Reporting

delinquent
Reporting

this

servicer.

on

a

mortgage

Agencies

derogatory

^ 29.

Agencies

his

id.

deliberately

filing his

within

Plaintiff

payment,

information

Prior to

inaccuracies

then

that

incorrectly

f

and

the

knowingly

which
favor.

Br.

1,

Plaintiff

ECF

No.

engaged

44.

did

not

days

Credit

credit,

id.

Plaintiff disputed the

credit

However,

the

published

report

directly

Defendant and with each of the Credit Reporting Agencies.

Opening

to

thirty

Plaintiff's

complaint,

consumer

was

28,

and

regarding

reported

the

resolve

dispute

the

with
Pl.'s

process

dispute

in

in

his

Id.

^ shortly after filing his complaint, Plaintiff settled his disputes with each
of

the

Credit

Reporting Agencies,

defendant in the case.

leaving

Pl.'s Opening Br. 1.

PennyMac

as

the

sole

remaining

Plaintiff alleged two specific claims against Defendant in
its capacity as his mortgage servicer: Count Six-violation of 15
U.S.C.

§

1681S-2 (b) (1) (A)

investigate"

"by

Plaintiff's

failing

disputes

all

relevant

id.

provided

by

and

the

H 70,

§ 1681S-2 (b) (1) (B)

information

fully

regarding

reporting of his mortgage payment,

violation of 15 U.S.C.

to

properly

inaccurate

and Count Seven-

"by failing to review

the

consumer

reporting

agencies," id. H 91.

While Plaintiff did not demand a specific

dollar

complaint.

amount

in

his

Plaintiff

requested

the form of actual damages,

statutory damages,

costs

relief

specific performance and

and attorney's

relief,

fees,

in

punitive damages,

injunctive

and "such other relief the Court deems just and proper."

Id. ^ 99.
Plaintiff's

Defendant's

counsel

settlement.
initially
$120,000,

48-1,

reducing
explaining

offered

2016,

records

August

Records

to

settle

and on November 10,

at

settle for

15.

that

19,

will

case

2016,

$5,000.

2016,
ECF

the

not

this

settlement
3

with

inquire

about

44-1.

against

Defendant

Plaintiff

Defendant

immediately

demand
counter

discussion

to
a

for

responded with a

Emails Between Counsel,

reasonable settlement range."

when

contact

to

No.

counsel

settlement

" [w] e

reflect

18,

Plaintiff's

Plaintiff's

outside of a
10,

on

Billing

counteroffer to

No.

billing

responded,

$119,000,

response
Id.

ECF

that

but
is

As of November

occurred,

Plaintiff

had

accrued

attorney's

Rotkis Decl.
November

including

Id.

H

fees

H 3, ECF No.

30,

2016,

the

coordinating,

4.

Then,

on

in

the

52-1.

parties

of

$51,193.75.

Between November 10,
continued

preparing

November

amount

for,

30,

to

and

pursue

taking

2016,

2d

2016,

and

discovery,

depositions.

Defendant

made

the

following Offer of Judgment:
Pursuant

to

Rule

68

of

the

Federal

Rules

of

Civil

Procedure, Defendant Pennymac Loan Services, LLC N.A.
("Pennymac")/
by counsel,
hereby offers
to
allow
judgment to be taken against it in this action as to
all claims asserted against it by Plaintiff David D.
Denton
(''Plaintiff"),
in
the
amount
of
(a)
Five
Thousand Dollars
($5,000.00)
for actual,
statutory,

and/or punitive damages;
incurred

in

this

action

and

(b)

to

the

all reasonable costs
date

of

this

offer,

including reasonable attorneys^
fees incurred as of
the date of this offer, as determined by the Court,
payable to Plaintiff's Counsel.
Offer

of

J.,

ECF

No.

41-1

(emphasis

added).

The

same

day,

Plaintiff accepted the Offer of Judgment and filed a notice of
acceptance with the Court.
J.,

ECF No.

Not. of Acceptance of R.

68 Offer of

41.

After the parties failed to agree on reasonable attorney's
fees.

Plaintiff

costs,

ECF No.

No.

44.

response,

On

filed

43,

a

motion

seeking

attorney's

fees

and a memorandum and exhibits in support,

January

18,

2017,

arguing that the Court

Defendant

(1)

filed

a

brief

and
ECF

in

should reduce Plaintiff's

requested fee award due to Plaintiff's limited success and

(2)

should exclude

ECF

fees

incurred after

the Offer of

Judgment.

No.

48,

2 017,
No.

at 5,

13.

together
52.

leave

Plaintiff filed a reply brief on January 28,

with

additional

On April

to

file

7,

2017,

supporting

Plaintiff

a

brief

Having
fees
for

been

submitted

a

in

opposition

fully

and costs,

ECF No.

on

briefed.

April

56.

for

his motion

Defendant responded

20,

Plaintiff's

ECF

motion

supplemental authority in support of

for attorney's fees and costs.
with

documentation.

2017.

motion

ECF

for

No.

57.

attorney's

and Plaintiff's motion to supplement,

are ripe

review.

II. Standard for Attorney's Fees Award
A.

Traditionally,

lawsuit
461

bears

U.S.

its

424,

Entitlement

under

the

to a

"American Rule,"

own attorney's

429

Fee Award

(1983) .

fees.

However,

each party

Hensley v.
Congress

the

Fair

seg.
of

Credit

Reporting

Under FCRA,

the

action

consumer

''in

liability"
U.S.C.

15

case

under this

with
of

reasonable
any

statute.

§

to award

successful
15 U.S.C.

id.,

U.S.C.

attorney's

§

action
I68I0;

shift

the

such as
1681,

et

"the costs
fees"
to

to

a

enforce

see also 15

§ 1681n{a)(3).

The
burden,

("FCRA"),

Congress directed courts

together
the

Act

Eckerhart,

may

attorney-fee burden through a fee-shifting statute,

in a

parties

also may

shift

and/or

limit

the

attorney-fee

such as by an offer of judgment made pursuant to Federal

Rule of Civil Procedure 68(a).

See Grissom v.
5

The Mills Corp.,

549 F.3d 313,

68

offer

320

of

(4th Cir.

judgment

in

2008)

the

{holding that,

case,

plaintiff

attorney's fees up to the date of the offer).

a

defendant may

under the Rule

was

entitled

Under Rule 68(a),

"serve on an opposing party an offer to allow

judgment on specified terms, with the costs then accrued."

R.

Civ.

P.

68(a).

If,

within

14

days,

the

plaintiff

written notice accepting the defendant's offer of
clerk must then enter the judgment.

After a
plaintiff

plaintiff

may

Charles

Marcus,

12

update)

("But

here

their

[Rule 68]

award

to

again

incurred

F.3d 1111,

of
.

judgment
.

1114-1113

for

68

offer of

the

judgment,

according

judgment.

Fed.

Civ.

§

defendants

R.

Miller

3005.1

R.

&

the

Civ.

P.

Richard

L.

(2d ed.

can provide

to

a

Apr.

2017

otherwise

in

if the offer explicitly limits the fee
before

the

date

legal work should not be included.");
70

serves

judgment,

fees

Arthur

& Proc.

offers;

Rule

offer of

Wright,

Prac.

a

Fed.

Id.

attorney's

in the

Alan

Fed.

fees

accepts

recover

"specified terms"
68(a);

to

(9th Cir.

"reasonable

of

the

offer,

see Guerrero v.

1995)

further

Cummings,

(holding that an offer

attorney fees

and

costs

incurred

. prior to the date of this offer in an amount to be set by

the court" unambiguously excluded attorney's fees in preparation
of the fee petition).

of

judgment

provide

Unless the "specified terms" in the offer

otherwise,

a

plaintiff

avenues for recovery of attorney's fees;
6

(1)

has

two

potential

under Rule

68,

as

"costs then accrued," or
as

FCRA.

Cooper

2008 WL 5332190,
B.

v.

(2)

under a fee-shifting statute,

Verifications,

at *4

{N.D.

Ind.

Calculation of a

Inc.,

No.

such

1:04-CV-385-TS,

2008) .

**Reasonable" Fee Award

If the plaintiff is entitled to attorney's fees,
must

the Court

then calculate

the

''reasonable"

attorney's

The United States Court of Appeals
outlined

a

three

step

framework

for

for

fees

the

for

case.

Fourth Circuit has

calculating

a

reasonable

attorney's fee:

First, the court must "determine the lodestar figure
by multiplying the number of reasonable hours expended
times a
Servs.,

reasonable rate."
LLC, 560 F.3d 235,

ascertain

what

is

Robinson v. Equifax Info.
243 (4th Cir. 2009).
To

reasonable

in

terms

of

hours

expended and the rate charged, the court is bound to
apply the factors set forth in Johnson v. Georgia
Highway Express Inc. , 488 F.2d 714, 717-19 {5th Cir.
1974).

Id.

at 243-44.

Next,

the court must

"subtract

fees for hours spent on unsuccessful claims unrelated
to successful ones."
Id. at 244.
Finally, the court
should award "some percentage of the remaining amount,

depending on the
plaintiff."
Id.
McAfee
(Jan.

v.
23,

Boczar,
2014)

738

degree

F.3d

81,

of

88

success

(4th

enjoyed

Cir.

2013),

by

as

the

amended

(footnote omitted)

^ The Court notes that many of the cases cited throughout this Opinion and
Order analyze statutes authorizing attorney's fees in contexts different from
the instant case.
However, the United States Supreme Court has noted that
the same legal standards for attorney's fees awards are "generally applicable
in all cases in which Congress has authorized an award of fees to a
'prevailing party.'"
Hensley, 461 U.S. at 455 n.7; see Robinson v. Equifax
Info.
Servs.,
LLC,
560
F.3d 235,
243
{4th Cir.
2009)
(applying
the
traditional attorney's fees calculation method to an attorney's fees request
under FCRA).

The calculation of a lodestar figure is "[t]he most useful

starting point for determining the amount of a reasonable fee,"
because

it

"provides

an

objective

basis

on

which

to

make

an

initial estimate of the value of a lawyer's services."

Hensley,

461 U.S.

at 433;

559 U.S.

542,

(2010)

551

see Perdue v.

.

.

.

fee-shifting

marks and citation omitted).

proving

the

Winn,

attorney's

own

jurisprudence")

(quotation

The fee applicant bears the burden

reasonableness

requested hourly rates,
the

ex rel.

(characterizing the lodestar calculation as "the

guiding light of

of

Kenny A.

of

the

hours

which generally

affidavit

and

expended

requires

timesheets

and

the

submission of
as

well

as

"'satisfactory specific evidence of the prevailing market rates

in the

relevant

attorney]
Plyler

v.

community for

seeks an award.'"
Evatt,

evaluating

the

reasonable

rate

902

F.2d

submissions
and a

the

type of work for which

Grissom,

549 F.3d at 321

273,

277

(4th

in

order

to

reasonable

number of

Cir.

(quoting

1990)).

determine
hours

[the

In

both

expended,

lodestar analysis is guided by the following twelve factors
"Johnson factors"):

(1) the 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)
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

a
the

(the

experience, reputation and ability of the attorney;
(10) the unde sirability 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.

Barber

v.

1978)

(adopting

Circuit

Kimbrell's

in

(1974));

objective
approach

the

Johnson

cf.

Inc.,

twelve

v.

Ga.

Perdue,

lodestar
outlined

577

559

U.S.

Johnson,

216,

factors

Highway

approach

in

F.2d

at

is

226

identified

Express

550-52

failing

(4th

by

Inc.;

the

488

to
to

the
hold

Cir.

Fifth

F.2d

714

why

(explaining

superior

but

n.28

the

subjective
that

it

is

improper to be informed by the Johnson factors when perfonning a
lodestar analysis).
this
the

Court

Fourth Circuit precedent

to be guided by the

lodestar

factors

Because

figure,

has

"to

already

the

been

analysis," such factor(s)

Johnson

extent

factors

that

incorporated

any

requires

in determining
of

into

the

the

Johnson

lodestar

are not later considered a second time

to make an upward or downward adjustment to the lodestar figure
because
McAfee,

doing

so

would

"inappropriately

such

factor.

738 F.3d at 91.

The second step in the fee
the

weigh"

Court

to

exclude

unsuccessful

claims

Robinson v.

Equifax

Cir.

see

2009);

fees

calculation procedure requires
for

counsel's

that are unrelated to the

Info.

Hens ley,

Servs.,
461

U.S.

LLC,
at

560
435

time

spent

on

successful claims.

F.3d 235,
("The

244

(4th

congressional

intent to limit awards to prevailing parties requires that . . .

[unrelated claims based on different facts and legal theories]
be treated as if they had been raised in separate lawsuits,

and

therefore no fee may be awarded for services on the unsuccessful

claim[s].").

The

Supreme Court has

recognized that

" [i]t may

well be that cases involving such unrelated claims are unlikely

to

arise

with

great

frequency,"

because

"[m]any

civil

rights

cases will present only a single claim," and in other cases, the
claims

related
latter

''will

involve a

legal

common core of

theories."

circumstance,

generally to the

Hens ley,

" [m]uch of

of

s e r i e s of

the

litigation as a

lawsuit

discrete

whole,

or will

U.S.

at

time

be based on

435.
will

In
be

it

such

devoted

making i t difficult

claim-by-claim basis,"

precluding

claims."

461

counsel's

divide the hours expended on a
nature

facts

from

being

to

with the

''viewed

as

a

Id.

The third and final step,

after a

lodestar calculation has

been made and any unsuccessful efforts on unrelated claims have
been excluded,

requires the Court to award "'some percentage of

the remaining amount,

depending on the degree of success enjoyed

by the plaintiff.'"

Grissom,

V.

City

of

Aiken,

278

F.3d

549 F.3d at 321

333,

337

(4th

Cir.

(quoting Johnson
2002)).

It

is

appropriate for the Court to reduce an award at this third step
of the analysis if "'the relief,
in

comparison

to

the

scope

of
10

however significant,
the

litigation

as

is limited
a

whole.'"

McAfee,

738

F.3d at

92

(quoting Hensley,

"What the court must ask is whether
level

of

success

satisfactory
Hensley,

that

basis

461 U.S.

makes

for

the

making

at 434).

461

fee

reasonably

award.'"

Accordingly,

expended

reasonable

hourly

cases

''where

nonfrivolous,
436.

An

rate

the

the

litigation

may

be

an

as

attorney's

it

was

counsel

litigated

fees

claims

award

reasonable

the

critical

to

case

factor

is

file

the

degree

whether

of

even

in

461 U.S.

at

driven

by

not

and

a

interrelated,

Hensley,

or

times

amount,"

therefore

suit

(quoting

whole

were

"with devotion
is

a

excessive

plaintiff's

Id.

a

the product of hours

and raised in good faith."

whether

''the most

on

expended

when "a plaintiff has

achieved only partial or limited success,
reasonably

at 439-40).

^the plaintiff achieved a

hours

a

U.S.

plaintiff's

skill";

success

rather,

obtained."

Id.

I I I . Discussion

Defendant

two

arguments

requested attorney's

fees

award.

Plaintiff

entitled

incurred

is
up

Defendant

makes

only
to

the

argues

date
that

of

to
the

in

response

First,

Plaintiff's

Plaintiff's

Defendant argues that

reasonable
Offer

to

of
fee

attorney's

Judgment.
award

fees

Second,
should

be

substantially reduced to account for Plaintiff's limited degree

of

success,

as

reflected

by

the

amount

of

damages

Plaintiff

demanded in initial settlement negotiations versus the amount of
11

damages Plaintiff actually obtained.

In considering Plaintiff's

attorney's fees request and Defendant's arguments in opposition,
the

Court will

determine

(both pre and post

Plaintiff's

Offer of

figure, and then adjust,

entitlement

Judgment),

remedy

case

Defendant's

investigate

was

filed

alleged

Plaintiff's

to

review

failure

disputes

all

relevant

consumer reporting agencies,

id.

H 91.

Defendant

"allow[ed]

judgment

be

all

claims

costs

incurred

in

lodestar

asserted

seeking

and

the

70,

of

inaccurate

and the alleged
provided

Judgment,

against

to

properly

by

On November 30,

taken

Offer of J.; Not. of Acceptance of R.
the Offer of Judgment,

t

information

Offer

to

fully

Compl.

Defendant's

as

FCRA,

regarding

accepted

to

to

to

Plaintiff

action

the

award

Fee Award

pursuant

reporting of his mortgage payment,
failure

fee

McAfee, 738 F.3d at 88.

A. Entitlement to a

instant

calculate

a

if necessary, the lodestar according to

Plaintiff's degree of success.

The

to

against
it

2016,

in
it

the

which

in

this

by

Plaintiff."

68 Offer of J.

As part of

Defendant offered to pay "all reasonable

this

action

including reasonable attorneys'

to

fees

the

date

of

this

offer,

incurred as of the date of

this offer, as determined by the Court."

Offer of J.

While the parties agree that Plaintiff is entitled to some
award of attorney's fees,
Plaintiff

is

entitled

to

the parties vigorously dispute whether
attorney's
12

fees

incurred

after

the

Offer of Judgment.
that

Plaintiff

because
such

the

Def. ' s Resp.

is

not

explicit

fees);

Pl.'s

prevailing

compensation

terms of

is,

for

13,

ECF No.

48

(arguing

entitled to post-Offer attorney's

Reply Br.

party

Br.

19,

as

time

the Offer of

a

ECF No.

matter

spent

litigating

Judgment excluded

52

of

fees

(arguing that

law,

the

entitled

fee

a
to

petition).

According to the billing records submitted,

Plaintiff's counsel,

Ms.

hours after November

30,

Susan Rotkis,

2016,

the

Judgment.

billed an additional

date

Billing

following

tasks:

that

Plaintiff

Records

client

at

contact,

fees

with

drafting

petition,

counsel,

billed

compilation

in the

case,

the

Offer

of

of

for

a

the

billing

telephone conference

declaration

for

the

fee

Id.

Plaintiff
Defendant's

is

Offer

of

successful
Judgment.

that

pursuant

to

an

purposes

of

determining

successful

a

a

(holding

party

offer

party.

fees under either

fee-shifting
Offer

Counsel

the

and drafting the motion for attorney's fees and brief

in support.

the

accepted

22-24.

estimate for attorney's
opposing

9.5

of

who

of

statute,

was

attorney's
may

such

as

as

13

he

54 9

accepted

F.3d

319

favorable

resolution

a

prevailing

party

fees

eligibility).
recover

according

to

for

As

a

attorney's

"costs then accrued,"

No.

at

a

potentially

FCRA,

Cooper,

because

Grissom,

achieved

Rule 68,

Judgment.

See

judgment

Plaintiff
(1)

party

or

(2)

a

the

terms

of

1:04-CV-385-TS,

2008

WL

5332190,

at

*4.

The

Court

will

address

Plaintiff's

entitlement

to attorney's fees both under Rule 68 and under FCRA.
1. Rule

68:

**Costs

then accrued"

Under Rule 68(a), a defendant may make an offer of judgment
"on specified terms,

P. 68(a)

with the costs then accrued."

(emphasis added).

Fed. R.

Civ.

Thus, under Rule 68, a plaintiff who

accepts an offer of judgment is entitled to costs accrued up to
the

point

of

the

offer.

Id.

Recoverable

"costs"

attorney's fees when "the underlying statute defines
include

attorney's

(1985).

fees."

In such cases,

Marek

Rule

68

"costs"
TS,

as

as

2008

pursuant
"the

fees"

Plaintiff

enforce

then

WL 5332190,

to

a

FCRA,
of

definition

at

in

the

entitled

accrued"

consumer

added);
of

*5.

to

see

costs

also

does

15

not

1,

with

U.S.C.

No.

not

9

case

define

was

filed

to

award

courts

successful
15

attorney's

action

U.S.C.

attorney

fees.

to

§ I68I0

§ 1681n(a) (3) .

encompass

under

l;04-CV-385-

reasonable

any

statute.

fees

does

civil

directed

case of

this

FCRA

instant

together

under

attorney's

Cooper,

Congress

"in the

U.S.

to

"are to be included as

because

The

which

action

liability"

(emphasis

not

473

'costs'

Id.

including attorney's fees.

costs

to

"costs

is

Chesny,

attorney's fees

costs for purposes of Rule 68."

Here,

v.

include

"FCRA's
Indeed,

the plain language of the FCRA's provisions for civil liability
for

both

willful

noncompliance
14

and

negligence

clearly

treat

costs and attorney fee separately."

2008

WL

5332190,

at

considered part of
of

"costs

Fed.

R.

then

Civ.

*5.

P.

Because

"costs"

accrued"

not

Marek,

No.

1:04-CV-385-TS,

attorney's

under FCRA,
does

68{a);

Cooper,

Rule

U.S.

are

not

SB's authorization

encompass

473

fees

at

attorney's

9.^

fees.

Therefore,

Plaintiff may not recover attorney's fees as part of his Rule 68
costs

then accrued.

2. Fee-shifting Statute: FCRA

While Plaintiff may not recover attorney's fees as part of
Rule 68

to

the

fees

^

"costs,"

Plaintiff may recover attorney's

fee-shifting

may

Defendant

be

limited

also

argues

provision of
by

the

that

FCRA,

terms

Plaintiff

in

is

though
the

not

fees pursuant

such attorney's

Offer

entitled

of

to

Judgment.

post-Offer

attorney's fees because a Rule 68 offer of judgment limits costs to only the
costs accrued as of the offer date.
Def.'s Resp. Br. 13-14.
Because
attorney's fees under FCRA are not considered "costs" within the definition
of Rule 68, attorney's fees are not limited as "costs then accrued" under
Rule 68.
For example, in Bradford v. HSBC Mortgage Corporation, 859 F. Supp.
2d 783 (E.D. Va. 2012), the offer of judgment included "costs and reasonable
attorney's fees in connection with this claim, if provided by statute," id.
at 788 (emphasis added) .
The terms of the offer of judgment only limited
costs and attorney's fees to what was authorized by statute, but did not
otherwise provide any limitation.
The claim in the case was brought under
the Truth in Lending Act {"TILA"), which provided that a successful party was
entitled to "the costs of the action, together with a reasonable attorney's
fee as determined by the court."
15 U.S.C. § 1640.
In construing the offer
of judgment in Bradford, the court held that Rule 68's limitation on "costs
then accrued" did not limit the award of post-offer attorney's fees because
the TILA "unambiguously excludes attorney's fees from costs."
Bradford, 859
F. Supp. 2d at 797.
Because attorney's fees were not considered "costs," and
therefore not limited by Rule 68's limitation on "costs then accrued," but
attorney's fees were authorized under TILA, and the terms of the offer of
judgment allowed for attorney's fees as provided by statute, the court in
Bradford held that post-offer attorney's fees were recoverable.
See id.
Here,
unlike the offer of
judgment in Bradford that encompassed all
attorney's fees provided by statute, Defendant's Offer of Judgment limited
the payment of attorney's fees to only those incurred up to the date of the
Offer.

15

Cooper,

No.

1:04-CV-385-TS,

2008

WL 5332190,

at

*4.

When

an

offer of judgment "is ambiguous or silent as to whether attorneyfees

have

been

included,

the

party

may

independently authorized by statute."
statutory right
any

to

successful

U.S.C.

reasonable

action

§ 1681n(a)(3);

Plaintiff

achieved

accepting
entitled

to

15 U.S.C.

a

to

(allowing

Offer

attorney's

judgment

to

fees
be

liability"

Judgment,

under

taken

Br.

3;

against

see also Grissom,

"in the
under

of

case

FCRA.

his

and

FCRA.

a
of
15

action by

therefore
Offer

See

is
J.

Defendant

claims asserted against it by Plaintiff");

Def.'s Resp.

if

It is undisputed that

resolution

of

fees

A consumer has

fees

§ 16810.

"successful"

Defendant's

Id.

attorney's

enforce

recover

of

"as

to

Pl.'s Opening Br.

549 F.3d at 319

all

3;

(holding

that a party who achieved a

favorable resolution pursuant to an

offer

prevailing

of

judgment

determining

was

attorney's
Plaintiff

a

fees
is

party

eligibility).

entitled

to

for

purposes

While

some

award

the

of

of

parties

agree

that

attorney's

fees,

the parties disagree as to whether Plaintiff is entitled

to attorney's fees incurred after the Offer of Judgment.

Def.'s

Resp. Br. 13; Pl.'s Reply Br. 19.

It

is

entitlement

party

"well

settled

to attorney's

recovers

See Trimper v.

attorney's

that

fees

the

time

spent

defending

is properly compensable"

fees

City of Norfolk,
16

under

a

fee-shifting

58 F.3d 68,

77

when a

statute.

(4th Cir.

1995)

(internal citation omitted).

However,

a

his

successful

resolution

of

while Plaintiff achieved

action

and

therefore

usually be entitled to all reasonable attorney's fees,
fees

in preparation of

successful

as a

fee

petition,

resolution pursuant

authorizing
68(a)

a

judgment

"on

Rule

specified

(emphasis added).
contract,

to a

Courts

Plaintiff

68

including

achieved

Offer of

teinns."

would

Fed.

R.

interpret an offer of

the

Judgment
Civ.

P.

judgment

enforcing the terms that the parties agreed upon

when the terms unambiguously address attorney's fees.

549 F.3d at 320

Grissom,

(looking to the "contract language" of the offer

of judgment to determine whether post-offer attorney's fees were
included in the
Ewald Co.

9,

V.

2016)

courts

Gomez,

136 S.

(applying

evaluate
Webb V.

terms of the offer of

the

effect

James,

use

"basic
of

a

663,

670

(2016),

principles

rejected Rule

147 F.3d 617,

contract

judgment.").

Ct.

judgment);

620

of
68

(7th Cir.

principles

to

see Campbell-

as revised

contract
offer of

1998)

(Feb.

law"

to

judgment) ;

("[I]n general,

interpret

offers

of

In order for the terms of the Offer of Judgment to

limit Plaintiff's statutory right to attorney's fees under FCRA,
the

terms

entitlement
2008
Inc.,

WL

of

the

to

of

attorney's

5332190,

201 F.R.D.

Offer

at
445,

*5
448

Judgment

fees.

(quoting
(S.D.

Cooper,
Aynes

Ind.

17

must

v.

2001)).

specifically

No.
Space

address

1:04-CV-385-TS,
Guard

Prods.,

Here,

in

the

Offer

of

Judgment,

Defendant

offered to pay Plaintiff's ''reasonable attorneys'
as

of

Offer

1113.

the
of

date

J.

of

this

(emphasis

offer,

added);

as
see

determined
Guerrero,

explicitly-

fees incurred

by

70

the

Court."

F.3d at

1114-

Plaintiff accepted Defendant's Offer of Judgment on these

terms.

Not.

of

Acceptance

of

R.

68

Offer

of

J.

Thus,

the

terms of the Offer of Judgment determine Plaintiff's entitlement
to

attorney's

5332190,

at *5;

RDB-08-1281,

fees.

Cooper,

see Doe v.

fees

were

expressly

provided

1:04-CV-385-TS,

2008

Odenton Volunteer Fire Co.,

2009 WL 3418567,

post-offer

No.

not

at *4

allowed

that

the

{D.

Md.

when

2009)

the

was

of

judgment

entitled

''reasonable attorney's fees and costs accrued to date");
V.
at

NCO Fin.
*2

(D.

offer of

Sys. ,
Nev.

Inc.,
2015)

judgment],

plain

language.").

Offer

of

Judgment

No.

("Fees

incurred
Guerrero,
the

incurred

after

Because
excludes

the

plain

attorney's

[the

language
fees

to

Watson

2015 WL 1959163,
date

are excluded under the offer of

this offer," Offer of J. ,

Judgment,

14-CV-1755-JAD-VCF,

CIV.A

(holding that

offer

plaintiff

No.

WL

of

after

of

the

judgment's
Defendant's

the

"date

of

pursuant to the terms of the Offer of

the Court finds that Plaintiff is not entitled to fees
while

preparing

the

70 F.3d at 1114-1113

settlement

offers

limits

attorney's

fees

petition.

("Because the plain language of
attorney's

prior to the date of the offers,
18

fees

to

those

accrued

the district court did not err

in

finding

that

the

[plaintiff's]

acceptance

clearly

and

unambiguously waived attorney's fees incurred thereafter.").

Thus,

Plaintiff

is not

Rule 68 ''costs," but ^

entitled to attorney's

under

entitled to attorney's fees under FCRA's

statutory fee-shifting provision,

as

terms"

in

that

fees

Plaintiff

accepted

limited by the
the

Offer

"specified

of

Judgment.

Grissom, 549 F.3d at 320 ("Rule 68, by its plain and unambiguous
terms,

on

provides for entry of judgment in favor of the plaintiff

[the]

terms

specified

in

an

offer

of

judgment.") .

The

"specified terms" of the Offer of Judgment in this case limited
the attorney's fees to only fees incurred as of the date of the
Offer of Judgment.
attorney's

because

fees

the

Consequently,

award

terms

of

by

the

the Court reduces Plaintiff's

the

9.5

Offer

of

post-Offer

Judgment

hours

requested

explicitly exclude

such hours.

B. Calculation of a

^^Reasonable"

Fee Award

1. Lodestar Analysis

The

first

determine

the

step

in

"lodestar"

calculating
figure

reasonable hours expended times a
F.3d at 88

(quoting Robinson,

a

reasonable

"by multiplying

reasonable rate."

560 F.3d at 243) .

19

the

fee

is

number
McAfee,

to
of
738

Based upon the

billing records and affidavits submitted to the Court,

Plaintiff

appears to request the following attorney's fees:^
Requested Hours and Hourly Rates
Name

Hours

Hourly Rate

Susan Rotkis

152.2

$ 475

$

72,295.00

Len Bennett

8.3

$ 625

$

5,187.50

CCM

2.2

$ 400

$

880.00

25

$ 200

$

5,000.00

$

83,362.50

Vicki Ward

(paralegal)

Total

TOTAL

a. Reasonable Rate

As

discussed

above.

Plaintiff

attorney's

fees

Judgment.

A party entitled

the

burden

rates

Cir.
to

of

incurred

the

Spell v.

market

LaFleur v.

Dollar Tree

(E.D.

2016)

(quoting

rates

the

attorney's

824

reasonable

Offer

of

fees

"bears

the

hourly

of

F.2d 1380,

1402

(4th

'to be calculated according

in
Inc.,

v.

to

of

reasonableness

McDaniel,

Blum

date

recover

the

Stores,

entitled

the

"The reasonable rate is

prevailing

Va.

of
to

establishing

requested."

1987).

as

is

the
189

relevant

community.'"

F.

3d

Stenson,

Supp.

465

U.S.

588,

596

886,

895

^ Plaintiff also appears to request $3,698.14 in costs, which would result in
a total requested amount of $87,060.64.
Billing Records at 22, ECF No. 44-1.
However, in his motion for attorney's fees. Plaintiff calculated his total
requested costs and attorney's fees as $85,644.39.
Mot. for Award of Att'y
Fees

&

Costs

1.

It

is

unclear

how

Plaintiff

calculated

his

total

amount

of

fees or what documentation he relied upon.
Thus, the Court uses the numbers
from Plaintiff's billing records and affidavits to determine what Plaintiff
is recfuesting in attorney's fees, subject to the limitation that Plaintiff's
recovery is not more than his explicitly requested amount of $85,644.39.

20

(1984)).

This

is

generally accomplished

''through affidavits

from disinterested counsel, evidence of awards in similar cases,
or

other

'actual

specific

rates

market.'"
Supp.

which

that

counsel

allows

can

the

710

(E.D.

Va.

court

command

Project Vote/Voting for America,

2d 704,

14 02) .

evidence

2012)

in

to

the

determine

[relevant]

Inc. v. Long,

(quoting Spell,

824

887 F.
F.2d at

"The relevant market for determining the prevailing rate

is ordinarily the community in which the court where the action
is prosecuted sits."
F.3d 169,

175

Here,

(4th Cir.

both

disinterested

attorney's
Decl.,

lead

fees.

48-2.

Caperton,

31

have

submitted

commenting

Compare

Pl.'s

with Def.'s

on

Plaintiff's

Opening
Resp.

affidavits

Br.

Br.

requested

Ex.

Ex.

2,

from

2,

Pittman

Fain Decl.,

Plaintiff has also submitted an affidavit by the

attorney

relevant

parties

44-2;

Inc. v.

1994).

counsel

ECF No.

ECF No.

Rum Creek Coal Sales,

work

on

the

case,

experience

generally Pl.'s Ex.

1,

and

Ms.
the

Rotkis,
work

Rotkis Decl.,

that

done

on

ECF No.

describes
this

44-1,

case,

her
see

and submitted

a copy of a declaration by Mr. Geoffrey Miller commenting on the
reasonableness
lawsuit,

id.

of

Pl.'s

attorney's
Ex.

that an hourly rate of

3,

fees

in

a

Miller Decl.,

$575 was

FCRA

ECF No.

reasonable

of Consumer Litigation Associates).

21

2014

class

44-3

for Mr.

action

(advising

Len Bennett

Plaintiff

the

who worked on

attorneys

requests

following

the

case;

hourly

$475

for

rates

Ms.

for

Rotkis,

the

senior

associate with twenty-one years of experience and lead attorney
in the instant case, and $625 for Mr. Bennett, law firm founding
partner with twenty-three years of experience and specialist in
consumer litigation law.
Plaintiff

appears

to

Pl.'s Opening Br.

request

an

hourly

11.

rate

Additionally,

of

$200

for

Ms.

Vicki Ward, a senior paralegal, Rotkis Decl. H 13; Pl.'s Opening
Br.

13

n.5,

and

$400

for

someone

identified

as

''CCM"

in

the

billing records, see generally Billing Records at 17-22.
Requested Rates
Name

Rate Requested

Susan Rotkis

$ 475

Len Bennett

$ 625

CCM

$ 400

Vicki Ward (paralegal)

$ 200

Plaintiff offers a declaration by an attorney,
in

support

generally

personal

of

the

Pittman

reasonableness

Decl.,

knowledge

of

with other attorneys,

publications,
rates

charged

reasonable,

id.
by

t

Pl.'s

Ex.

consumer

these

2.

fee

Based

litigation

advertised rates,

18/ Mr.
Mr.

of

Mr.

Dale Pittman,
amounts.

upon

cases,

See

extensive

discussions

case decisions and other

Pittman states that he believes the

Bennett

and

Ms.

Rotkis

to

be

"fair,

and within the prevailing market rates for attorneys

of similar education,

training,

and experience," id.
22

f 31.

Mr.

Hugh Fain,
challenge

in a

declaration submitted by Defendant,

Plaintiff's

requested

hourly

they are the ^'maximum hourly rates."
in

its

response

dispute

brief.

Defendant

[Plaintiff's requested]

present Fee Petition."

Notwithstanding
requested rates,

rates,

but

notes

Fain Decl. H 21.
states

rates

for

that

it

that

Finally,
not

the purposes of

the

Def.'s Resp. Br. 12.

the

absence

of

a

"dispute"

regarding

the

the Court is required by FCRA and the terms of
15 U.S.C.

(directing courts to award "reasonable attorney's fees"

under FCRA);

J.

not

"does

the Offer of Judgment to determine a reasonable rate.

§ 16810

does

see also 15 U.S.C.

§ 1681n{a) (3)

(offering "reasonable attorneys'

the Court").

fees

...

(same);

Offer of

as determined by

In determining the reasonable rates,

the Court is

required to consider the relevant Johnson factors.®

Barber, 577

F.2d

at

226

two,

the novelty and difficulty of questions raised,

factor three,
of

n.28.

the

First,

the

Court

evaluates

argue

factor

and Johnson

skill required to perform the legal services

the various attorneys and paralegals.

not

Johnson

either of

these

factors.

While Defendant does

Plaintiff

acknowledges

that

the "questions presented by this case are not unusually novel or
difficult

that

the

in

this

court

"novelty

and

or

to

Plaintiff's

difficulty

of

counsel,"

the

issues

concluding

therefore

® While the Court considers the Johnson factors out of numeric order, the
Court does so for analytic clarity by evaluating factors together that
analyze closely related topics.

23

provides no basis
PI. ' s Opening Br.

to adjust
8.

the

However,

lodestar dovmward or upward."

while the novelty and difficulty

of the consumer law issues raised may not have been unusual for

Plaintiff's experienced counsel,
"only a

few

attorneys

litigate

the

attorneys

do

involved in such
Flame

S.A.

7185199,
rate

v.

at *6

because

handling"

nationally who

underlying
not

Plaintiff argues that there are

claims

understand

in

or

are
this

claim

[consumer protection]

Indus.

Carriers,

(E.D. Va.
of

Inc.,

2014)

each

willing
case

spot

to

[because

m] ost

legal

issues

the

cases."
No.

and able

Id.

at

2:13-CV-658,

9;

see

2014

WL

(authorizing the requested hourly

attorney's

of the legal issue).

"skillful

However,

and

proficient

the Fourth Circuit has

been cautious about awarding attorneys higher hourly rates based

solely upon the argument that "consumer law is a special field,"
finding

in Robinson v.

such argument was

Equifax Information Services,

"untenable."

560

F.3d at 245

LLC,

that

(reversing the

holding of the district court in Alexandria that hourly fees of
$425

and

$305

plaintiff
rates

were

were

failed

to

reasonable

provide

reasonable,

such

in a

any
as

consumer

evidence

an

law case

that

affidavit

the

from

outside of the law firm regarding the market rate).
the

Court

difficulty

concludes

of

that

questions

Johnson

raised,

24

factor

and

two,

Johnson

when

the

requested

an

attorney

Therefore,

the

novelty

and

factor

three,

the

skill

required

to

perform

the

legal

services

of

the

various

attorneys and paralegals, are neutral factors.

Next,

the

opportunity
six,

the

Court

costs

in

pressing

attorney's

litigation,

considers

Johnson

the

litigation,

expectations

at

and Johnson factor ten,

the

Litigation

Associates

four,

Johnson
outset

the

factor
of

the

the asserted undesirability

of the case within this legal community.
Consumer

factor

is

a

Plaintiff asserts that

small

law

fiinn

and

thus

representing a client on a

contingent fee or fee-shifting basis

necessarily

of

involved

loss

other

opportunities.

The

Court

also considers Plaintiff's representation that "there are only a

handful

of

federal

court

Pi. ' s

attorneys

Opening

and
Br.

who

in

the

18.

practice
area

in

of

According

this

legal

consumer
to

market,

protection

Plaintiff,

the

in

law."

case

was

undesirable because "FCRA is a

complex statute and advancing the

costs

an

required

to

litigate

inaccuracy

case—which

often

include the deposition of overseas ACDV agents or employees in
other states—can be costly and risky,
taken on a
Thus,

paying

in

contingency fee,
addition

clients

representation

to

when

these cases are often

with no guarantee of payment."

the

lost

opportunity

an

attorney

(opportunity cost),
of

as

consumer

accepts
the

contingent

nature

such cases

less desirable within the

a

Court

protection

25

to

legal

represent

contingent

considers

cases

may

community.

Id.
other

fee

how the

also

make

Because

" [t]he vast majority of consumer protection claims arise out of
clients

facing

financial

distress,"

such

cases

are

often

undesirable because of the "far greater risk that the attorney
will not see any payment at all than an attorney practicing in
other areas of the law."
CV-986,
USA,

2013

LLC,

Won Kim v.

WL 3973419,

No.

at

3:13CV825,

*5

No.

2017)

deviating

from

incentivizes

attorneys

to

otherwise

ignored due

cf.

be

Robinson,

560

an attorney a

rate

the

prior

litigating

an

the

FCRA

on

of
a

fees

cost,

undesirability
neither

an

Opening Br.

of

increase

10-11,

counsel's

the

case

nor

16

decrease

the

.

v.

FTS

2017),

.

Va.

[FCRA]

that

may

attorney.");

to award

than his

"risk

hourly

associated

basis").

in

Having

the Court concludes that

neutral

(acknowledging

.

1:12-

(E.D.

cases

higher

contingent

in

Va.

"untenable"

expectations,

are

(E.D.

for

the

considered Plaintiff's representations,
opportunity

No.

Thomas

Rule,

these

percent

because

case

at *2

(finding it

thirty-five

year

2013);

American

minimal

N.A.,

2017 WL 1147460

prosecute

245

Bank,

Va.

3:13CV825,

to

F.3d at

rate

(E.D.

2017 WL 1148283,

R & R adopted sub nom..

("[B]y

U.S.

the

and

factors,

fee

that

the

award.

Johnson

asserted

justifying
See

factors

Pl.'s

four

and six were neutral).

In evaluating Johnson factor seven,
this case,

on May 2,

the time limitations of

the Court observes that this case was initially filed

2016,

Compl.,

and the merits of the case were resolved
26

on November 30,

of Judgment,

Offer of J.

his complaint,
both of

2016 when Plaintiff accepted Defendant's Offer

his

claims

of

seven,

time

See

Pl.'s

within seven months of filing

Plaintiff had achieved a complete resolution of

chronology
the

Thus,

the

against
case,

Defendant.

the

limitations

Opening

Br.

16

Court
of

Having

finds

the

case,

that
is

(acknowledging

a

considered
Johnson
neutral

that

the

factor
factor.

Johnson

factor

seven was neutral).

The

of

Court next

the

professional

attorneys.

in

Plaintiff
neutral"

relationship

between

eleven,

the nature

Plaintiff

and

his

the

states

instant
that

matter.

this

factor

Pl.'s
is

Opening

either

Br.

18.

"inapplicable

or

in the context of an ''attorney whose representation is

limited

to

matters."

consumer
Id.

protection

Consequently,

eleven,

between

Johnson factor

Plaintiff's counsel was engaged solely to represent

Plaintiff

factor

evaluates

the

Plaintiff

nature

and his

claims,

the
of

Court

the

attorneys,

which

are

not

ongoing

concludes

that Johnson

professional

relationship

does

not

provide

a

basis

for adjusting Plaintiff's requested hourly rate.
The

Court

further

"customary hourly rate
similar work.

{internal
five,

the

Daly v.

citations
Court

of

considers

Johnson

compensation"

Hill,

considered

charged to

790 F.2d 1071,

omitted).

In

the
27

factor

1077

evaluating

affidavits

five,

the

clients

for

{4th Cir.

Johnson

submitted

1986)

factor
by

both

parties

regarding

reasonable

attorney's

fees

for

the

specific

legal work in this case and the customary hourly rates typically
charged to clients for similar work in similar cases.

Creek Coal,

31 F.3d at 175

See Rum

(determining that the customary rate

is the rate that counsel could command in the market based upon

the

rates

paid

to
and

circumstances"
services

typical

in

attorneys
counsel's

similar

fees,

of

''comparable

own

typical

circumstances").

In

the Court considers Ms.

skill
fees

for

Rotkis's

two

years

she

has

been paid

an

clients and by parties to mediation.

hourly

similar
''similar

reviewing

counsel's

assertion that,

while she rarely accepts clients on an hourly basis,

past

in

rate

Rotkis Decl.

within the

of

$425

H 12.

Court also considers that the $425 hourly rate that Ms.
has

charged

to

her

fee-paying

requested hourly rate of
rel.

Peterson v.

499,

516

not

(E.D.

intended

Cty.

Va.

not

challenged

finds

that

2009)

"to

(quoting Trimper,

provide
58

Ms.

Johnson

compensation"

Sch.

$475
Bd.

a

Rotkis's

charged

to

in the

is

lower

instant case.

of Hanover Cty. ,

The

Rotkis

than

her

See JP ex

641 F.

Supp.

2d

(noting that fee-shifting statutes are

F.3d at

factor

clients

by

windfall
73)).
higher

five,

clients

to
Thus,

plaintiff's

while Defendant has

requested

the

for

counsel"

rate,

the

"customary hourly

similar

work,

rate

of

weighs

in

favor of a lower hourly rate than Plaintiff has requested.

28

Court

Next,

in

determining

relevant market,

the

reasonable

(evaluating

examples

of

v.

561,

(4th

572

the

approved

"similar

Coal Corp.

evidence of a

Dir.,

fee

consumer

Division,
recent

the

and

in

2013)

Grissom,

rates

like

Office of Workers^

Cir.

the

in

("[P]rior

cited

cases");

Comp.
fee

549 F.3d at

E.

cases

as

Associated

Programs,
awards

724

F.3d

constitute

prevailing market rate that may be considered in

law

Because the parties have cited to so

attorney's

fees

cases

from

Court broadly surveyed attorney's

consumer

Virginia

hourly

awards

fee-shifting contexts.").
few

within

the Court considers under Johnson factor twelve

the hourly rates awarded in similar cases.

323

rate

law

cases

attorney's

in

fees

the

entire

awards

in

fees

Eastern

other

the

Norfolk

awards

in

District

of

types

of

cases

within the Norfolk Division of the Eastern District of Virginia
in order to assist it in determining what the prevailing market
hourly rate for an attorney's fees award would be for a similar

case in the Norfolk Division.^

Id. at 572

("[W]e have held that

^
Arriola v. Pardo, No. 1:14CV0745 JFA, 2015 WL 3404725, at *6 (E.D. Va.
2015)
(authorizing in the Alexandria Division of the Court the following
hourly rates in a Consumer Credit Protection Act case: $375 for an attorney
with nine years of experience; $3 00 for an attorney with four years of
experience; and $175 for a paralegal); Won Kim, No. l:12-CV-986, 2013 WL
3973419, at *4 (finding in the Alexandria Division of the Court an hourly
rate of $380 to be reasonable for an "experienced federal court litigator" in
a consumer law case) ; Bradford, 859 F. Supp. 2d at 798 (finding in the
Alexandria Division of the Court an hourly rate of $300 to be reasonable in a
consumer law case for an attorney with eleven years of experience) ; see also
Crump V. Dep't of Navy, No. 2:13CV707, 2017 WL 1158244, at *9 (E.D, Va. 2017)
(finding in the Norfolk Division of the Court the following hourly rates to
be reasonable in an employment law case: $400 for a partner with nearly forty

years of experience, $315 for an associate with nineteen years of experience,
29

'[e]vidence
sufficient

of
to

fee

awards

establish

in

the

comparable

prevailing

cases
market

is

generally-

rates

in

the

relevant community.'"

(quoting Newport News Shipbuilding & Dry

Dock

376

Co.

V.

Additionally,

Brown,

the

Court

F.3d

245,

looked

at

251

cases

(4th

in

Cir.

which

2004))).

courts

have

specifically approved Plaintiff's counsel's hourly rates.
court

in

the

Eastern District

of Virginia,

Richmond Division,

found an hourly rate of $4 00 to be reasonable for Ms.
an hourly

rate

of

$575

to

be

reasonable

2014 FCRA class action lawsuit.
& J. ,

James v.

(E.D.

Va.

Experian Info.

2014).

for

Rotkis Decl.
Sols.,

Additionally,

Mr.

No.

The

Mr.

Rotkis and

Bennett

H 18;

Final Order

3:12CV902,

Bennett's

in a

at

hourly

1

9(d)

rate

of

$575 was again found to be reasonable in the Eastern District of
Virginia,

lawsuit.

Richmond Division,

Miller Decl.

t 30,

in another

34

2014

FCRA class action

(asserting that Mr.

Bennett's

and $150 for a paralegal with extensive legal experience); Prison Legal News
V. Stolle, 129 F. Supp. 3d 390, 403 (E.D. Va. 2015), affd. No. 15-2197, 2017
WL 888234 (4th Cir. Mar. 6, 2017) (authorizing in a constitutional law case

in the Norfolk Division of the Court hourly rates of $400 for attorneys with
over forty years of experience and $325 for an attorney with eighteen years
of experience); Carr v. Rest Inn, Inc., No. 2:14-CV-609, 2015 WL 5177600, at
*4 (E.D. Va. 2015) (finding in the Norfolk Division of the Court that an
hourly rate of
$275
and $310
would be
reasonable
for
a
lawyer who
successfully resolved a
Fair Labor Standards Act case);
Two Men & A
Truck/Int'l, Inc. v. A Mover Inc., 128 F. Supp. 3d 919, 927 (E.D. Va. 2015)
(approving in the Norfolk Division of the Court in an intellectual property
case hourly rates of $600 for a partner, $400 for an associate, and $250 for
a paralegal); Lismont v. Alexander Binzel Corp., 47 F. Supp. 3d 443, 459
(E.D. Va. 2014) (authorizing in the Norfolk Division of the Court in a patent
case hourly rates of $550 for an attorney who had practiced for thirty-eight
years but only $170 for a first year associate) ; JTH Tax, Inc. v. Grabert, 8
F- Supp. 3d 731, 738 (E.D. Va. 2014) (finding in the Norfolk Division of the
Court an hourly rate of $225 to be reasonable for a fifth-year associate
acting as lead counsel in a case over promissory notes).
30

rate of $575 was reasonable in the case of Berry v.
Risk & Info.
Info.

Analytics Grp.,

Analytics Grp.,

*15

{E.D.

Va.

600

{4th

Cir.

that

Mr.

2014),

No.

(approving

had

Berry v.

3:11CV754,

aff'd sub nom.

2 015)

Miller

Inc.,

Inc.);

recommended

amount

in

his

LexisNexis Risk &

2014 WL 4403524,

Berry v.

the

LexisNexis

Schulman,

of

at

807 F.3d

attorney's

declaration) .

fees
These

court-approved hourly rates are

lower than those that Plaintiff

requests

Ms.

in

the

instant

approved but now requests

case:
$475,

Rotkis

and Mr.

$575 approved but now requests $625.
reasonableness
Johnson

factor

of

Plaintiff's

twelve,

awarded in similar cases,

$400

Bennett previously had

Thus,

requested

having

previously had

in determining the
hourly

considered

the

rates

under

hourly

rates

and compared such rates to the hourly

rates requested in this case,® the Court concludes that the rates
awarded in similar cases weigh in favor

of

a

lower attorney's

fees award than Plaintiff has requested.

® The Court also notes that while this district spans a wide geographic area,
at least one district in our circuit that spans a smaller geographic area has
established by local court rule guidelines for presumptively reasonable
hourly rates in attorney's fees petitions.
While such rates are not
necessarily indicative of the prevailing local market rate in this Court's
jurisdiction, the Court notes that in the District of Maryland, the following
are guidelines for reasonable hourly rates: "Lawyers admitted to the bar for
fifteen (15) to nineteen (19) years: $275-425. Lawyers admitted to the bar
for twenty (20) years or more: $300-475."
Md. Fed. Ct. R. App. B(3).
Finally,
while helpful,
"[t]hese rates are intended solely to provide
practical guidance to lawyers and judges when requesting, challenging and
awarding fees. . . . [T]here are attorneys for whom, and cases for which, the
market rate differs from these guideline rates."
Id. n.6.

31

Finally,

with

respect

to

Johnson

factor

nine,

the

Court

considers the experience and reputation of each attorney.
Bennett is a

founding partner of Consumer Litigation Associates

and provided oversight in the instant case.
According

to Mr.

[Consumer

Decl.

cases

H 23.

He

consumer-side

H 21.

Pittman,

Litigation

protection

Mr.

"[n]o other

Associates]

handled

in

describes

consumer

the

law

firm

the

in

the

number

Eastern

firm as

protection

Rotkis Decl.
comes

f

close

of

11.
to

consumer

District."

Pittman

''one of America's best

litigation

law

firms."

Id.

According to Mr. Pittman, Mr. Bennett is a "trail blazer

within the still relatively young consumer protection bar in the
United

States,"

id.

H

24,

and

Mr.

Miller

asserts

that

Mr.

Bennett is among "the most experienced FCRA class action lawyers

in the United States,"
V.

Se.

(E.D.
the

Wholesale

Va.

2014)

Norfolk

Miller Decl.

Corp.,

No.

(stating

Division

of

per hour);
settlement

Division

of

with James,
in

a

the

that

the
Court

2014

compare Alexander
WL 1165844,

"prevailing market
for

consumer

law

at

rate"

*11

in

attorneys

experience was between $300 and $450

No.

consumer

Court

2;13CV213,

the

with thirty-five years of

H 39(d);

3;12CV902,

class

after

action

discussing

at

f

9(d)

lawsuit

on

the

in

(approving a
the

record

Richmond

that

an

hourly rate of $575 was reasonable for Mr. Bennett).
The
Ms.

Court next

Rotkis,

considers

the

lead attorney in the
32

experience

and reputation of

instant case.

Ms.

Rotkis has

twenty-one

years

represented

clients

and

state

of

experience

in

courts.

over

Rotkis

300

as

an

consumer

Decl.

^

2,

attorney
law

cases

4.

She

and
in

has

federal

periodically

teaches continuing legal education classes on issues of consumer

protection,

such as

litigation under FCRA,

and is

the National Association of Consumer Advocates.
Pittman

states

became a

that

full-time

he

has

known

Ms.

a

member of

Id.
since

Rotkis

f 8-9.
she

Mr.
first

law clerk for the Honorable Dennis Dohnal,

the Richmond Division of this court, Pittman Decl.

t

in

25, and has

worked closely with her as co-counsel on cases since she joined

Consumer
Pittman,

Litigation
Ms.

Associates,

id.

H 27.

According

to

Mr.

Rotkis is ''as bright as they come and fully capable

of producing work at the speed and quality levels required both
by

the

Rocket

Litigation
2:13CV213,

Docket

and

2014

WL

1165844,

high

Id.

Associates]

the

H

at

*11

caseload

29;

see

at

[Consumer

Alexander,

(approving

in

the

No.

Norfolk

Division of the Court an hourly rate of $390 as reasonable for a

litigator who

was

''well-reputed and

'highly qualified'

in

the

field of consumer law").

The

Court

paralegal
Ward "is a

[of]

in

also

the

considers

instant

highly skilled,

experience

Virginia-Pilot

as

Media

a

the

case.

experience

According

of

to

Ms.

Ms.

Ward,

Rotkis,

a

Ms.

senior paralegal with over 27 years

paralegal."

Companies,
33

LLC

Rotkis
v.

Dep't

Decl.
of

H 13;

see

Justice,

No.

2:14CV577,

2016

WL 4265742,

at

*5

(E.D.

Va.

reasonable an hourly rate of $155 for a
years

of

Rotkis,

experience

most

consumer

of

with

Ms.

work.

Rotkis

submitted

entries for

CCM,

for

the

Leonard's and Ms.
requested

Pilot,

No.

hourly

paralegal
No.

experience,

while

above

reasons,

the

13.

Last,

there

are

in

in

billing

what qualifications

Court

rates,

while

$155

Ms.

Ward's

finds

with over
2016

20

years

of

CCM's

Mr.

in favor of their

experience

experience.

WL 4265742,

2017 WL 1158244,

of

that

is

more

hourly rate awarded in Virginia-Pilot

at *9

at

*5;

see

Virginiaalso

Crump,

(authorizing $150 per hour

qualifications,

such

the Court cannot determine a

notwithstanding

the

absence

Defendant to Plaintiff's requested rates,

independent

FCRA requires
see

Ms.

Without any

as

education

or

reasonable hourly rate

CCM.

Thus,

an

H

paralegal with extensive legal experience).

description

for

to

been exclusively

is unclear who CCM is,

2:14CV577,

2:13CV707,

for a

has

Rotkis's experience weighs

consistent with the

a

as

or how CMM's hourly rate is justified at $400 per hour.

Therefore,

for

According

Decl.

documentation,

(finding

paralegal with over 20

firm) .

experience

Plaintiff's

CCM has,

law

Ward's

protection

it

the

2016)

15

U.S.C.

evaluation of
the
§

Court
I68I0,

the
34

"reasonable"
Offer

of

a

challenge

by

the Court must conduct

such requested

to award
(2)

of

rates

because

attorney's

Judgment

states

(1)

fees,
that

Defendant will pay Plaintiff's ^^reasonable attorneys' fees . . .
as

determined

by

the

Court/'

Offer

of

J. ,

requested that the Court award Plaintiff

in attorneys'

fees"

in responding to

$85,644.3 9 in attorney's

fees,

and

(3)

''not more than $5,000

Plaintiff's

Def.'s

Defendant

Resp.

Br.

considered all of the relevant Johnson factors,

request
16.

for

Having

the Court finds

the following hourly rates reasonable:
Approved Rates

Name

Approved Rate

Susan Rotkis

$ 425
$

Len Bennett

575

"COM"

$ 0

Vicki Ward (paralegal)

$ 155

b. Reasonable Hours

Having

determined

the

reasonable

hourly

rates,

the

must next determine what hours were "reasonably expended"
litigation.

Hensley,

should exclude

not

from

461 U.S.

this

at 434

initial

'reasonably expended.'"

fee

Court
in the

("The district court also

calculation hours

(quoting S.

Rep.

No.

that

94-1011,

were

p.

6

(1976))) .

In analyzing the hours reasonably expended,

the Court

considers

Johnson

expended.

Barber,

577

factor

one,

F.2d at 226 n.28.

the
It is

time

and

labor

the obligation of counsel

to "maintain billing time records in a manner that will enable a

35

reviewing court to identify distinct claims."
at

437.

Thus,

expended,

the

"inadequate."

in

determining

Court

reduces

the

Hensley,

reasonable

hours

where

time

461 U.S.
and

labor

documentation

is

See id. at 434.

Plaintiff

has

submitted

billing

records®

and

seeks

compensation for the following hours expended in litigating this
case;

Requested Hours
Hours
Name

Fee

TOTAL

LITIGATION
PETITION

Susan Rotkis
Len

9.5^°

142 .7

Bennett

152 .2

8.3

8.3

^^CCM"

2.2

2.2

Vicki Ward (paralegal)

25

25

See generally Billing Records at 17-24; Rotkis Decl. H 13.
i.

In
Johnson

analyzing
factor

the

one.

Mr.

time

Bennett

and

Plaintiff's

labor
hours

billed

work on the case appear well-documented,

litigation,

^ The

Court

and reasonable.

notes

that

Plaintiff

expended
for

Mr.

to

Bennett's

directly related to the

As explained above,

only

according

submitted

billing

Mr.

Bennett is

records

for

Ms.

Rotkis, Mr. Bennett, and CCM.
See generally Billing Records at 17-24,
No
billing records were submitted for the work alleged to have been done by Ms.
Ward.

As the Court concluded above, because the terms of the Offer of Judgment
explicitly exclude attorney's fees subsequent to the date of the Offer of
Judgment, Plaintiff is not entitled to the hours spent in preparation of the
attorney's fees petition.

36

the

CO-founding partner of

law

firm,

and

Pittman Decl.

supervisory,

is

a

the

Consumer Litigation Associates

specialist

H 24.

His

in

consumer

involvement

in the

with only 8.3 hours billed.

billing entries for Mr.

Bennett,

protection
instant

law.

case was

Having reviewed the

the Court finds

such hours

to

according

to

be reasonably spent.
ii.

In

analyzing

Johnson

factor

the

one,

time

labor

expended

contained

While

detail

and

labor

for

were

redacted

some

Ms.

the

billing

Court

to

reasonable

Rotkis's

might

be

entries

determine

because

information

such entries

expended

directly related to the

However,

sufficient

Rotkis

the majority of

appear well-documented,
reasonable.

Ms.

or

litigation,
do

the

on a

not

that

the

block

client

the client is familiar with the progress of the work,

and

provide
time

billing

constitute

sufficient

billed hours

and

records
entries.

bill

where

i t is not

sufficient for an attorney's fees request such as this.
(A)

Because

the

Redacted Entries

burden

of

demonstrating

reasonable rests upon the fee applicant,

to

expect

guidance

that
in

applicant's

identifying

Baltimore Cty. ,
Hensley,

the

Md. ,

461 U.S.

913

the

time

F.2d 113,

at 437).

128

hours

are

''the court is entitled

records

recoverable

what

will

provide

some

hours."

Buffington v.

(4th Cir.

1990)

(citing

"Parties are generally entitled to
37

assert privilege and redact records

in connection with motions

for

thereby

relieved of

of

fees."

fees

proving

but
the

Mellon V.

2015),
a

they are

not

reasonableness

Bell, No.

the

3:11CV1255,

the

See

2015 WL 778668,

burden of

Bank

of

at *2

(D.

N.Y.

Conn.

A partial redaction of billing records does not prevent

court from granting fees on the basis of the redacted records

unless

the

thoroughly
them.'"

''records

redacted

Id.

WL 4298325,

supporting

that

the

the

Court

motion

[can]not

{quoting Home Funding Group,
at *6 n,7

(D.

Conn.

that

of

2009 WL 728462,

Theodore

at *1

Coates,

(D.

Kochmann,

2008

the Court notes

See AIG Annuity Ins.

P.C.,

No.

2009)

Colo.

review

it conduct an in

camera review of the redacted billing records,

Law Offices

'so

Without predicting how

request

that no such request was made here.

been

reasonably

LLC v.

2008)).

the Court would have ruled on a

have

{evaluating a

Co. v.

CIVA07CV01908-MSKMJW,

request for

the court to review attorney billing records in camera).
In

Plaintiff's

submitted

billing

records,

nine

entries

contain redacted information:

Hours With Redacted Descriptions

10/23/2015

Requested

Description

Date

Hours

1.5

1

J

10/24/2015

38

1.8

10/28/2015

0.5

docs from PNMC date 12/8 (2
letters) "missing essential

information"; provided potential
12/10/2015

response;

mortgage statement

0.5

11/13/2015 UNREADABLE document

production -- impression th^^^^^|
CRRG mortgage guidelines re:
requirements for mortgage servicers
(last four CRRGs); Review similar
mortgage cases,

12/10/2015

2.3

III 1 1 1 III 1II

1 1IIII

violations, inaccurate reporting
confirmed, C/A under FCRA for
accuracy and failure to
investigate; No XB
MTG LAB and VLW, review C/A, FCRA &
12/11/2015

1.0

mtg front office
12/11/2015

12/18/2015

(Viera)

re: file

maintenance for FCRA (CRAs &

furnisher)

0.3

(two cases -- keep

PNMC file (review Wells Fargo pmt
history, PNMC responses, CRRG
requirements for mortgage, all pmts
sent to date, txn log, PNMC posts
-

1.3

- research for compl against PNMC

is there c/a for setting it up to
look late)
email

from client with docs PNMC

more problems w/escrow! Escrow
analysis incorrect, to detriment of
1/31/2016

consumer^J^HH^^^^Hjjlljjl^^^^^^H

3.5

12.7

TOTAL

Billing Records at 17-18.
In

reviewing

following

entries

the
"so

redacted

records,

thoroughly

39

the

redacted

Court
that

finds
the

the

Court

[can]not

reasonably review them"—October 23,

2015, October 28,
Bell,

No.

2015,

October 24,

2015, December 11, 2015, and January 31, 2016.

3:11CV1255,

2015

WL

778668,

entries is nearly entirely redacted,

at

*2.

Each

and thus

of

these

the Court cannot

determine whether the undisclosed actions were reasonable.
V.

Va.

State Bd.

of Elections,

at *10

(E.D. Va.

2015)

permit the

Court

No.

3:13CV678,

2015 WL 11256614,

("[V]ague or redacted time entries do not

to weigh the hours

claimed and exclude hours

that were not

'reasonably expended.'"

(quoting Guidry v.

442

2d

2006))).

F.

Supp.

282,

Page

294

(E.D.

Va.

Clare,

Therefore,

the

Court reduces Ms.

Rotkis's hours by 8.3 hours to account for the

redacted

that

entries

remaining

redacted

counsel's work,
the

redacted

activities

the

Court

entries

is

offer

unable

some

to

evaluate.

information

The

regarding

but do not identify the amount of time spent on
portion

listed.

and

Thus,

the

amount

of

time

on

the

other

the Court will consider the remaining

redacted entries in its' block billing analysis.
(B) Block Billing

Plaintiff's billing records include "block billing" entries

which

list

spent

on

multiple
each

activities

activity.

without

Guidry,

442

delineating
F.

Supp.

the
2d

time

at

("Inadequate documentation includes the practice of grouping,

'lumping,'

several tasks together under a

single entry,

294
or

without

specifying the amount of time spent on each particular task.").
40

It

is

the

records

obligation

in

a

of

manner

counsel

that

will

identify distinct claims."

of

the

obligation

detail

that

are

of

disfavored

Colvin,

No.

see

Cable,

at

Sky

*4

"lumping"

court

may

2014

LLC v.

Va.

warrants a

No.

with

and

*8

that

reduction of

often

the

the

entries

Faircloth

2014

Va.

v.

2014);

WL 4407130,

"block

total

sufficient

{E.D.

5:11CV00048,

{noting

Because

billing

cases.
at

to

determine

block

award

time

court

at 437.

records

review

fees

billing

reviewing

461 U.S.

WL 5488809,

Coley,

2014)

a

activities,

attorney's

2:13CV156,

(W.D.

enable

Hensley,

individual

in

"maintain

to maintain billing

the

reasonableness

to

billing"

fee award).

or

"The

traditional remedy for block billing is to reduce the fee by a

fixed

percentage

Corp.

of Del.,

2014),

aff'd,

No.

For

Jones

3;12CV443,

777 F.3d 658

Plaintiff's
entries.

reduction."

billing

example,

v.

2014 WL 2993443,

(4th Cir.

records

was

activity

a

in

Because

the

listed,

it

the

cause

the

contain various

on December

complaint

activity,

action

middle

entry
is

of

does

of

for

the

not

28,

versus

which

time

time

Court

is
41

*9

(E.D.

Va.

block billing

counsel

with

a

Billing Records

times

was

was

requests

and researching whether

complaint,

attribute

how much

the

a

2 015,

entry.

unclear how much

at

Interactive

2015).

1.3 hours for reviewing the "PNMC file"
there

Southpeak

to

spent

spent

unable

each

redacted

at

activity

researching

on

to

the

18.

for

redacted

review

for

reasonableness.

In

another

example,

on August

26,

2016,

acdv

Ms.

from

Rotkis billed 3.8 hours for:

PNMC

--

potential

automatic

exclusion:

no

relevant time pd. ,
no policies
& procedures,
no
evidence of investigation at all, no names of any
witness
(possible
Noguiera and Rodgers
from
CRA
disclosures) no evidence of what PNMC reported to
CRAs, no record of payments in disputed month, no
evidence
of
read/understanding
of
statute,
no
inofrmation [sic] how to read codes, abbreviations, no
evidence re QWR Check possible dates for dep notices
{if no response to request for dates)

Billing
efforts,

Records
a

deposition

at

20.

This

compensable task,

dates,

scheduling.

a

Directsat USA,

2016 WL 1077158, at *4 n.3

work

includes

transmitting
Faircloth,
it

was

of

No.

tasks

documents
2:13CV156,

improper

to

use

counsel's

non-compensable

2747,

such

lists

research

together with checking on possible

largely

See Butler v.

entry

(D. Md.

as

the

and

work

LLC,

2016)

No.

related

billing"

to

at

*8

because

compensable work with non-compensable work).

task

of

CA DKC 10-

("Purely clerical

downloading,

2014 WL 5488809,
"block

clerical

printing,

and

scheduling.");
(holding that
it

commingles

Another example of

block billing occurred on September 15, 2016:
minor edits to P.O.,
correspondence to counsel re:
depo dates,
differentiate btw 30(b)(6) and 30(b)(1)
witnesses, additional time to complete discovery by
PNMC; settlement inquiry

Billing Records 20.
counsel edited a

It appears that during this 1.3 hour entry,

document and corresponded with counsel.

both of these types of tasks may be compensable,
42

While

the listing of

multiple

tasks

in

a

single

billing

entry

does

not

allow

the

Court to determine whether a reasonable amount of time was spent
on each activity.
Inc. ,

128

futile

F.

for

entries

See Two Men & A Truck/Int'l,

Supp.

this

into

3d

919,

Court

their

to

2013

WL

billing

to block billing entries.

"by

a

reducing

amount"

overall

{quoting Guidry,

Virginia

Panel

Corp.,

{"It

separate

would be

these

records,

Va.

the

a

'block
random

Taylor,

2013))).

No.

Having

Court will

exercise

Rotkis's hours by ten percent due

Project Vote,

fee
442

96

2015)

v. A Mover

and apportion[]

{E.D.

court may reduce a

the

to

tasks

*21

its discretion to reduce Ms.

{noting that

Va.

{quoting Abusamhadaneh v.

193778,

evaluated Plaintiff's

(E.D.

attempt

constituent

amount of time to each.'"
1:11CV939,

929

Inc.

award

F.

F.

fee

Supp.

Supp.

2d at 716

award for block billing

by

Supp.

887 F.

a

fixed

percentage

2d at 294));

3d 573,

583

or

see Lusk v.

{W.D.

Va.

2015)

(reducing fee award by five percent to account for counsel's use
of block billing).
iii.

The
submitted

Court

finds

that

documentation

reasonableness

of

Ms.

to

Ward's

Ms.

Ward

Plaintiff
allow

the

work.

has

not

Court

to

Hensley,

461

sufficiently
evaluate

U.S.

at

the

437

(requiring counsel to "maintain billing time records in a manner
that

will

enable

a

reviewing

43

court

to

identify

distinct

claims").
Ward,

Plaintiff did not submit any billing records for Ms.

stating only that:

Vicki Ward is a highly skilled, senior paralegal with
over 27 years [of] experience as a paralegal, most of
that experience has been dedicated exclusively to
consumer protection work. Depending on the task, Ms.
Ward tracks her time and we charge an hourly rate of
$200 for her work. In this case, she has provided 25
hours of substantive work in drafting and editing the
complaint,
maintaining and organizing the client's
documents; drafting and editing discovery; scheduling
and re-scheduling depositions and court reporters;
receiving,
reviewing and organizing the Defendant's
documents
and
discovery
responses;
receiving,
reviewing and drafting responses to the Defendant's
discovery to Plaintiff; communicating with the client.

Rotkis Decl. H 13.
While
case,

Ms.

Ward

undoubtedly

assisted

Ms.

Rotkis

in

this

the above description of Ms. Ward's twenty-five hours does

not provide the Court with sufficient detail to determine which

hours were reasonably spent on this litigation.
Council

1993)

of

Greater Wash,

Landow,

999

F.2d

92,

97

(requiring that for an award of attorney's fees,

"must

make

every

specifically
"records
that

v.

See Fair Hous.

request)

allocate

should

the

effort

court

the

attempt
may

to

time

to

spent

the

Lusk,

96 F.

much

time

on

what

44

claim"

describe

Supp.

for block billing because i t was
spent

each

the
of

3d at 583

Cir.

applicant

records

reasonableness

hours

was

time

on

specifically

determine

(emphasis added);

submit

(4th

which

and

such

work"
the

so
fee

(reducing

"impossible to tell how

particular

task

in

order

to

determine if the time spent was reasonable").
such as

Moreover,

actions

"maintaining and organizing the client's documents"

or

"scheduling and re-scheduling depositions and court reporters,"
constitute

"purely clerical"

at a paralegal rate,

which

128

F.

2747,

WL

1077158,

Supp.

3d at

929;

see Butler,

at

n.3

{considering

*4

scheduling and document management as
Therefore,

the

"should not be billed

regardless of who performs them."

& A Truck,

2016

work,

Court

reduces

No.

Two Men

CA DKC 10-

tasks

such

as

"purely clerical work").

Plaintiff's

attorney's

fees

award

by the 25 hours that Plaintiff requested for Ms. Ward.
iv.

Finally,

the

Court

finds

sufficiently

submitted

evaluate

the

reasonableness of

Hensley,

461

U.S.

records

that

unclear

who

at

list

CCM

that

documentation

437.

work

is,

"CCM"

what

allow

to

has

Court

the

worked performed by

While

done

Plaintiff

by

Plaintiff
CCM,

as

qualifications

CCM

has,

spent

by

CCM

CCM,
were

the

Court

cannot

reasonable.

determine

Because

the

See

it

and why

is

the

Without any

that

Court

to

billing

above,

work that CCM did was necessary to this litigation.
description of

"CCM."

submitted

noted

not

the

must

hours
reduce

Plaintiff's requested hours where documentation is "inadequate,"
id.

at 434,

the Court reduces Plaintiff's attorney's fees award

by the 2.2 hours that Plaintiff requested for CCM.

45

V. Reasonable Hours Summary

Having

reviewed

Plaintiff's

considered Johnson factor one,

Court

finds

that

its'

adjustment

Robins

Co. ,

abuses

its

to

obligation

Inc. ,

the
86

hours
F.3d

discretion

if

considering the factors
Barber,

577

following
eliminate

F.2d

at

hours

that

to

award

"reasonable"

Plaintiff
364,

an

373

(4th

a

The

Cir.

fee

the

Plaintiff

Court

hours
has

reasonably billed in this case.

fees

re
{"A

without

therefore

to

A.H.
court

carefully

{citing

makes

in

order

demonstrate

the

to
were

See McDonald ex rel Prendergast

V.

Pension Plan of the NYSA-ILA Pension Trust Fund,

96

(2d Cir.

2006)

In

1996)

requested

failed

the

requires some degree

relevant to fair compensation."

to

and

attorney's

requested.

allows

it

226)).

adjustments

documents

the time and labor expended,

only to the extent that i t is

of

submitted

450

F.3d 91,

("A district court may exercise its discretion

and use a percentage deduction as a practical means of trimming
fat from a fee application.")(internal citations omitted).
Plaintiff

submitted

eight

pages

reflecting counsel's work in this case.

24.

Having

reviewed

the

billing

of

billing

records

See Billing Records 17-

records^^

and

supporting

The Court notes that Plaintiff's billing records contain mathematical
errors.
For example, billing records indicate that, on November 10, 2016,
Ms. Rotkis spent 1.3 hours planning for a settlement conference, billing at
an hourly rate of $475.
Billing Records at 21.
The billing records list the
total for this line entry as $593.75.
Id.
However, 1.3 hours multiplied by
a $475 hourly rate results in a fee of $617.50.
Had Ms. Rotkis only billed

46

documentation,

the

Court

sufficient

evidence

appropriate

as

to

to

Mr.

Plaintiff

has

not

that

fee

award

any

However,

fact

the

that

detailed.
Rotkis's

and

block

Therefore,
account

hours

billing

as

failed

to

the

redacted

to

Ms.

due

to

461

that

the

recognizes

the

following

that

demonstrate

or

for

CCM.

despite

the

thorough

that

all

redacted

U.S.

Court

and

of

Ms.

entries

at

434.

is

unable

to

Rotkis's remaining hours by ten

percent to account for block billing entries.
Court

finds

is

Rotkis's hours by 8.3 hours to

entries

evaluate and further reduces Ms.

Ward

generally

Hens ley,

the Court reduces Ms.

for

evidence

award

but

demonstrate

''reasonable"

submitted

fee

Rotkis,

for

are

entries.

a

has

explained above,

records

are

that

sufficient

that,

billing
has

Plaintiff

and Ms.

appropriate

finds

Plaintiff
claimed

Bennett

is

that

demonstrate

submitted

Court

the

finds

hours

as

Accordingly,

reasonably

spent

the
by

Plaintiff in this litigation:

1.25 hours, the total line entry of $593.75 would be accurate.
This is one
example of fourteen such errors contained on a single page of the submitted
billing records.
Id.
The Court observes that, with respect to each of these
referenced entries,
the mathematical discrepancy represents a
0.05 hour
increase in each entry as to the number of hours requested.
It is unclear to
the Court what

caused these mathematical errors.

used the hours

listed,

fees

on

this

basis,

and makes no adjustments

this

discrepancy

Therefore,

to

further

the

while the Court

requested attorney's

supports

the

determination above to reduce Ms. Rotkis's hours for block billing.

47

Court's

Hours
Name
Litigation

Fee Petition

Total Hours

Susan Rotkis

121

0

121

Len Bennett

8.3

0

8.3

COM

0

0

0

Vicki Ward (paralegal)

0

0

0

c. Lodestar Siommary

Based

analysis
Court's

upon

the

outlined

reasonable

above,

the

lodestar calculation,

hours

and

following

which

is

reasonable

table

the

rate

reflects

the

beginning point

for

an attorney's fees award prior to any adjustments in step two or
three of the required analysis.
Hotos

Rate

Awarded

Awarded

121

$ 425

$

51,425.00

8.3

$ 575

$

4,772.50

Name

Susan Rotkis
Len

Bennett

Total

COM

0

$

0

$

0.00

Vicki Ward (paralegal)

0

$ 155

$

0.00

$

56,197.50

TOTAL Lodestar Figure

2. Adjustment for Unsuccessful Unrelated Claims
After

a

lodestar

determine whether

the

figure

fee

is

calculated,

award should be

the

reduced to

Court

must

reflect

the

time counsel spent on unsuccessful claims that are unrelated to
the

successful

plaintiff's

claims.

claims

are

Robinson,

based

on
48

560

F.3d at

different

244.

"Where

facts

and

the

legal

theories, and the plaintiff has prevailed on only some of those
claims,

.

.

.

these

unrelated

claims

[must]

they had been raised in separate lawsuits,
may be

awarded

for

services

State Teachers Ass'n v.

789

(1989) .

but

not

facts,

However,

others

and

on

the

the

treated

as

if

and therefore no fee

unsuccessful

Garland Indep.

when a

be

Sch.

claim."

Dist.,

Tex.

489 U.S.

782,

plaintiff prevails on some issues

claims

arise

"out

of

a

common

core

of

and involve related legal theories," a district court may

exercise

its

discretion

to

arrive

at

a

reasonable

fee

award,

"either by attempting to identify specific hours that should be
eliminated or by

simply reducing

the

limited success of the plaintiff."
Here,
the

while

lodestar

($5,000)

Defendant

figure

to

account

for

the

Id. at 789-90.

argues

because

award

that

the

Plaintiff

Court

should reduce

"settled

for

a

sum

that was far less than the amount he sought," Defendant

does not argue that Plaintiff was unsuccessful on either claim
against Defendant.
specific
U.S.C.

§

claims

Def.'s Resp.

against

1681S-2 (b) (1) (A)

investigate"

Plaintiff's

Br.

Defendant:
"by

all

relevant

agencies,"

id.

91.

Count

disputes

provided

Pursuant
49

Six-violation

to

fully

regarding
id.

70,

§ 1681S-2 (b) (1) (B)

information

^

Plaintiff alleged two

failing

reporting of his mortgage payment,
violation of 15 U.S.C.

6.

by

to

the

15

properly

inaccurate

and Count

Seven-

''by failing to review

the

the

and

of

consumer

Offer

of

reporting

Judgment,

Defendant
action
Offer

allowed

as

to

of

''judgment

all

J.

claims

(emphasis

to

be

asserted

added).

taken

against

against

Thus,

it

it

by

because

no

overall

to

the

and

analysis

adjustment

on

to

moves

lodestar

figure

considering

this

Plaintiff."

Plaintiff

successful on both claims asserted against Defendant,
makes

in

at

the Court

this

Plaintiff's

was

stage

of

degree

of

award

is

success.

3. Adjustment for Degree of Success

The

final

step

in

determining

a

reasonable

fee

adjusting the lodestar figure to take into account the '''degree

of success enjoyed by the plaintiff" on his successful claims.

Grissom,

549

F.3d at

321

(quoting Johnson,

278

F.3d at

337).

The "most critical factor"

in evaluating the reasonableness of a

fee

of

U.S.

award

"is

at 436;

(internal

the

degree

success

see also Farrar v.

quotation

marks

Hobby,

omitted)

obtained."

Hensley,

506 U.S.

103,

114

("[T]he

degree

461

(1992)

of

the

plaintiff's overall success goes to the reasonableness of a fee
award.").

When a

success,"
the

fact

raised

the
that

in

plaintiff achieves only

lodestar figure
all

good

claims

faith."

were

may be excessive notwithstanding
"interrelated,

Hensley,

determining Plaintiff's degree of
Johnson factor eight;

"partial or limited

461

success,

nonfrivolous,

U.S.

at

the

Court

43 6.

and

In

considers

the "amount in controversy and the results

50

obtained.McAfee,
extent

of

the

relief

amount of damages
(quoting

738

Mercer

F.3d at 89.

obtained,

[the

v.

Duke

Univ. ,

Finally,

while

degree of

success,

client

Va.

proportional

recovered

Assocs. ,

in

P.L.L.C. ,

2007)

the

401

an attorney's

directly

court]

must

compare

sought to the amount awarded."

2005)).

be

" [W] hen considering the

("Courts

to

the

No.

Court

legal

Cir.

Plaintiff's

award is not

required to

of

action.

damages

Croy

v.

2007 WL 676698,

repeatedly

92-93

(4th

204

at

consider

amount

5:06CV00107,

have

199,

must

fees

the

F.3d

Id.

the

held

that

that

E.
at

the

Hall
*3

&

(W.D.

proportionality

between a consumer's recovery and the attorney's fees to be paid
is

not

required

in

every

action

brought

under

the

Consumer

Credit Protection Act statutes such as the Fair Credit Reporting
Act.").

Defendant argues that "the Court should reduce the lodestar
because

[Plaintiff]

settled for a

than the amount he sought."
Defendant,
which

is

damages

damages

Plaintiff
an

amount

[Plaintiff]

[Plaintiff]

is
that

($5,000)

Def.'s Resp.

entitled
is

sum

to

"not

"consistent

obtained

in

this

Br.

that was far less

6.

more

with

case

sought throughout this case

the

According to
than
ratio

($5,000)

$5,000,"
of

to

the

the

($120,000)," id.

The Court notes that the consideration of Plaintiff's degree of success was

not subsumed within the prior analysis determining the lodestar figure, but
is considered in the adjustment to the lodestar figure.
See McAfee, 738 F.3d
at

89-90.

51

at 16.

While Plaintiff did not demand a specific dollar amount

in

complaint.

his

Plaintiff

requested

relief

in

the

actual damages,

statutory damages,

attorney's fees,

specific performance and injunctive relief,

"such other relief

f 99.

the

Court

deems

the

Defendant

case

for

responded

$120,000,^^

with

a

reducing

Plaintiff's

$119,000,

for

costs and

just and proper."

and

Compl.

later.

$5,000.

Not.

of

Plaintiff's

percent

his

of

Acceptance

Defendant's

recovery

initial

counteroffer

10,

of

2016,

settlement.

demand

from

$120,000

settlement range."

accepted

financial

November

"[w]e will not counter a

reasonable

Plaintiff

on

Plaintiff's counsel responded by

settlement

but explaining that

is outside of a

and

$5,000

Emails Between Counsel at 15.

weeks

of

Plaintiff initially indicated that he would be willing to

settle

that

punitive damages,

form

Defendant's

of
is

R.
a

settlement

proportionality argument,

68

Offer

little

In

Plaintiff

"enjoyed complete success in this case"

of

more

demand.

response

Id.

Offer of

to

Three

Judgment

J.

Thus,

than

four

response

argues

that

to

he

because he prevailed on

both of his legal claims and further argues that attorney's fees
are

not

required

recovered,

See McAfee,

to

especially

be

proportional

in

738 F,3d at 90

a

("[A]

consumer

to

the

amount

protection

district court

case

Plaintiff
such

as

'has discretion to consider

settlement negotiations in determining the reasonableness of fees but i t is
not required to do so.'" {quoting Thomas v. Nat'l Football League Players
Ass'n,

273 F.3d 1124,

1130 n.9

(B.C.

Cir.

52

2001))).

this.

PI.'s Opening Br. 11-12.
In

evaluating

Johnson

controversy and the

factor

eight,

results obtained,"

the

McAfee,

738

the Court considers that while Plaintiff is a
under

FCRA in

that

he

achieved

complete

"amount

in

F.3d at

89,

successful party

legal

vindication

on

both of his claims against Defendant via the Offer of Judgment,
Plaintiff's
over

monetary

four

recovery

percent)

Nevertheless,

the

protection case,

of

percent)

would

requiring

rejected

2016,

the

to

be

that

the

amount

of

proportionality

No.

fraction

settlement

this

of

was

(just

demand.

a

5:06CV00107,

$5,000

subsequently

the

in

case

for

consumer

of

cases

is

settlement

low,
would

at *3.

of

additional

as

protection

Plaintiff

offer

"such

fees

consumer

that

four

typically

2007 WL 676698,

an

(nearly

attorneys

considers

incurred

recovery

because

enforcement

nevertheless

Defendant's

and

notes

monetary value

Croy,

Court

small

initial

appropriate

vigorous

statutes."

The

not

direct

discourage

a

and therefore an attorney's fees award that is

proportional

where

only

his

Court

directly

this,

is

cursorily

November

$23,303.50

10,

in

legal fees before ultimately accepting Defendant's $5,000 Offer
of

Judgment

(rejecting

on November

Defendant's

30,

2016.

$5,000

See

Emails

settlement

after receiving the email); 2d Rotkis Decl.
the

Court

views

with

some

skepticism
53

Between Counsel

offer

seven

2-3.

Defendant's

minutes

Thus, while
request

that

Plaintiff be awarded less than $5,000 in attorney's fees based
upon Plaintiff's degree of success between the amount of damages
sought

and

reduction

the

in

amount

the

of

lodestar

damages

figure

obtained,

is

some

required,

amount

though

not

of

to

extent that Defendant requested.
Considering

all

of

the

above,

the

Court

concludes

that

a

40% reduction in attorney's fees is appropriate in this case to
reflect Plaintiff's tangible victory by succeeding on the merits
of both of

his

claims

through the

accepted Offer of

Judgment,

while also taking into account the minimal financial award that
Plaintiff

Hens ley,

accepted

461 U.S.

rule or formula"

but

the

court

attorney's

in

at 436-37

of

simply

award

in

his

initial

(noting that

for reducing a

"may

fees

light

case

the
is

demand.

" [t] here is no precise

fee award for a

reduce

this

settlement

lack of success

award").
therefore

The

total

reduced

from

Plaintiff

also

$56,197.50 to $33,718.50.
C. Costs

In addition

to

reasonable

attorney's

fees,

requests that the Court award his costs pursuant to the Offer of
Judgment.

of

this

Mot.

award

for Award of Att'y Fees

of

costs.

Plaintiff

records for "expenses":

54

& Costs 1.

produced

In support

counsel's

billing

Date

Activity

EE

05/02/2016
11/29/2016

Description

Filing Fee

SR

Line

Qty.

Cost

Total

400.00

1.0

400.00

65.86

1.0

65.86

3,232 .28

1.0

3,232.28

Federal

SR

Express

Maxene Weinberg
(Depositions of
11/30/2016

Noguiera, Clark,

Depos

SR

court

reporter £e
videoconference

10/18/2016; 1/30/2016)

Expense Total: $3,698.14

Billing Records

at

that

there

"[b]ecause

22.

In her declaration,
were

four

Ms.

stated

[Defendant]

defendants,

Rotkis

should

only be responsible for one quarter of the filing fee,

or $100,"

reducing the total cost attributable to Defendant to $3,398.14.
Rotkis Decl.

H 45.

Plaintiff

did not

attach any

invoices

or

receipts for these expenses to Plaintiff's request for costs.
Pursuant

"serve

on

to

an

a

Rule

opposing

68

Offer of

party

an

Judgment,

offer

to

(emphasis

added).

In order

for

the

defendant may

allow

specified terms, with the costs then accrued."
68(a)

a

judgment

Fed. R.

Court

to

Civ. P.

tax

against the Defendant, Local Rule 54(D) states;

The party entitled to costs shall file a bill of costs
as provided in 28 U.S.C. §§ 1920 and 1924 within
eleven (11) days from the entry of judgment, unless
such time is extended by order of the Court. Such bill
of costs shall distinctly set forth each item thereof
so that the nature of the charge can be readily
understood.

An

itemization

and

documentation

for

requested costs in all categories shall be attached to
the cost bill.
Costs will be
documentation is not provided.

55

disallowed

if

on

proper

costs

E.D.

Va.

Log.

Civ.

R.

54(D)

(emphasis

added).

" [T] he

law

is

clear that no litigation costs should be awarded in the absence

of adequate documentation."

Trimper,

district

that

court's

Expenses,'

CIV.

that

to

award

SAG10752,

merely

"[w]ith

"an

litigation

supporting

receipts,"

is

Fernandes

2013 WL 6330705,

listing

no

costs);

at *1

v.

(D.

expenses

documentation,

insufficient

(affirming a

unverified

with no receipts or bills attached"

documentation

No.

holding

58 F.3d at 77

Md.

Cty. ,

2013)

(holding

billing

such

records,

as

to

of

was insufficient
Montgomery

in

documentation

'Chart

vouchers,

allow

a

or

court

to

verify that the amounts are accurate and reasonable).
Here,

as part of Plaintiff's initial filing of his case, he

submitted his
See Compl.

receipt

Ex.

3,

the Court finds
of

the

filing

Defendant
the

is

Court

for

$400.00

for

Filing Fee Receipt,

the

"civil

ECF No.

filing

1-3.

fee."

Therefore,

that there is adequate documentation of payment
fee,

and pursuant

attributable

AWARDS

$100,00.

As

to

because

Plaintiff

costs

with one

for

the

Plaintiff's

has

not

to

Plaintiff's
quarter of

filing

fee

remaining

provided

statement
the

in

filing

the

requests

invoices

or

that
fee,

amount
for

of

costs,

receipts

for

these expenses,

the Court is unable to determine if the expenses

are

costs.

taxable

as

accordance

with

disallowed

if

Trimper,

Local

proper

Rule

58

54(D)

documentation
56

F.3d at

77.

directing

is

not

Therefore,

that

provided,

costs

E.D.

in

be

Va.

Log.

Civ.

R.

54(D),

the

Court

DENIES

all

of

Plaintiff's

remaining requests for costs.
IV.

As

explained

above,

"lodestar analysis,"

Barber,
to

577

the

has

Court

the

"degree

461 U.S.

at 436,

of

success

total

requested
overall

Plaintiff's

motion

by

degree

for

the

required

the Johnson factors,

lodestar figure

achieved"

by

Plaintiff,

and has evaluated the costs requested.

downward adjustment

Plaintiff's

performed

has adjusted the

After making a

hours

has

considered all of

F.2d at 226 n.28,

reflect

Hensley,

Conclusion

to the hourly rates and the

Plaintiff,
of

attorney's

and

success,

fees

adjusting

the

and

Court

costs,

for

GRANTS

and

hereby

AWARDS attorney's fees to Plaintiff in the amount of $33,718.50,
and

AWARDS

DENIES
Court

costs

all

other

DISMISSES

to

Plaintiff

in

the

requested costs.
as

MOOT

supplemental authority.

ECF

Plaintiff's

ECF No.

to

IT

all

IS

SO

counsel

of

of

No.

for

but

Finally,

43.

motion

$100.00,

the

leave

to

file

56.

The Clerk is REQUESTED to send a
Order

amount

copy of this Opinion and

record.

ORDERED.

/s
Mark S.
UNITED

Norfolk, Virginia
May
_, 2017
57

STATES

Davis

DISTRICT

JUDGE