Gash v. Client Services, Inc.
Filing
20
ORDER - Plaintiff's Motion for Attorneys Fees [Doc # 11 ] is GRANTED up to $2,550.00, but the portion seeking an award above that amount is DENIED. Plaintiff's Supplemental Motion for Attorneys Fees [Doc # 15 ] is DENIED. By Judge Lewis T. Babcock on 3/18/13.(mjgsl, )
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
LEWIS T. BABCOCK, JUDGE
Civil Case No. 12-cv-01426-LTB-MJW
MIRACLE GASH,
Plaintiff,
v.
CLIENT SERVICES, INC., a Missouri corporation,
Defendant.
______________________________________________________________________________
ORDER
______________________________________________________________________________
This matter is before me on two motions, filed by Plaintiff Miracle Gash, seeking an
award of attorney fees against Defendant, Client Services Inc., following an entry of judgment
on Plaintiff’s claim that it violated the Fair Debt Collection Practices Act, 15 U.S.C. § 1692, et.
seq. (The “FDCPA”). Specifically, I address Plaintiff’s Motion for Attorneys Fees [Doc # 11],
and Plaintiff’s Supplemental Motion for Attorneys Fees [Doc #15]. Oral argument would not
materially assist me in the determination of these motion. After consideration of the parties’
briefs and accompanying affidavits and records, as well as Plaintiff’s Notice of Supplemental
Authority [Doc #19], and for the reasons stated below, I GRANT the initial motion seeking
attorney fees in part and I DENY it in part, and I DENY the supplemental motion.
I. BACKGROUND
On June 1, 2012, Plaintiff filed a complaint against Defendant Client Services Inc.
(“Client Services”), alleging a violation of the FDCPA. In her complaint, Plaintiff sought
damages and reasonable attorney fees and costs pursuant to 15 U.S.C. §1692k(a) and
§1692k(a)(3). Six days later, on June 7, 2012, Client Services served Plaintiff with an offer of
judgment, pursuant to Fed. R. Civ. P. 68, and Plaintiff accepted it on June 22, 2012. As a result,
judgment was entered for Plaintiff and against Client Services, on June 25, 2012, in the amount
of $1,001.00, plus costs and reasonable attorney fees. The parties subsequently stipulated to the
applicable amount of costs and, thus, $420.00 of costs were taxed against Client Services on
June 29, 2012. Thereafter, the parties attempted to agree on the applicable amount of reasonable
attorney fees, but were unsuccessful. Plaintiff then filed the motions at issue.
II. LAW
Section 1692k(a) of the FDCPA provides that a defendant is liable to a successful
plaintiff for, among other things, “a reasonable attorney’s fee as determined by the court.” 15
U.S.C. § 1692k(a)(3). To determine the “reasonable fee” under the FDCPA, I calculate the
“lodestar amount.” Anchondo v. Anderson, Crenshaw & Associates, L.L.C., 616 F.3d 1098,
1102 (10th Cir. 2010)(citing Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40
(1983)). The lodestar is the “the number of hours reasonably expended on the litigation
multiplied by a reasonable hourly rate, which produces a presumptively reasonable fee that may
in rare circumstances be adjusted to account for the presence of special circumstances.”
Anchondo v. Anderson, supra, 616 F.3d at 1102 (citing Hensley v. Eckerhart, supra, 461 U.S. at
433). “The burden of proving the claimed number of hours and rate is on the applicant.”
Malloy v. Monahan, 73 F.3d 1012, 1018 (10th Cir. 1996). A district court’s attorney fee award
is reviewed for an abuse of discretion. Anchondo v. Anderson, supra, 616 F.3d at 1101 (citing
Jane L. v. Bangerter, 61 F.3d 1505, 1509 (10th Cir. 1995)).
III. ANALYSIS
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In Plaintiff’s initial motion for attorney fees, she seeks an award in the amount of
$3,525.00 – for 14.1 hours of work at a rate of $250 per hour – for work performed by her
attorney, David M. Larson, through the filing of the motion. In her supplemental motion,
Plaintiff requests an additional $875.00 in attorney fees – for 3.5 hours at a rate of $250 per hour
– for work performed by Mr. Larson after he filed the initial motion.
A. Hourly Rate
Client Services does not contest or challenge Mr. Larson’s hourly rate, sought in this
case, of $250 per hour. “The setting of a reasonable hourly rate is within the district court’s
discretion,” Jane L. v. Bangerter, supra, 61 F.3d at 1510, but it should be in line with “prevailing
market rates in the relevant community” for similar services by lawyers of reasonably
comparable skill, experience, and reputation. Blum v. Stenson, 465 U.S. 886, 896 FN.11, 104 S.
Ct. 1541, 79 L.Ed2d 891 (1984). After reviewing the briefs, attached affidavits, and the relevant
legal authority from this district, I conclude that the requested rate of $250 per hour is a
reasonable hourly rate for attorneys with skill and experience comparable to Mr. Larson’s. See
e.g. King v. Midland Credit Mgmnt., Inc., 11-cv-02808-CMA-BNB, 2012 WL 3590787
(D.Colo., Aug. 20, 2012); White v. Cavalry Portfolio Services, LLC, 11-cv-2217-LTB-KLM,
2012 WL 899280 (D.Colo., March 16, 2012).
B. Hours Expended
Client Services does, however, take issue with the number of hours Plaintiff is claiming
were reasonably expended by her attorney in the course of this litigation. Plaintiff’s burden “is
to prove and establish the reasonableness of each dollar, each hour, above zero.” Mares v.
Credit Bureau of Raton, 801 F.2d 1197, 1210 (10th Cir. 1986)(quotations omitted). “The
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Supreme Court, recognizing that not all hours expended in litigation are normally billed to a
client, noted that an applicant should exercise ‘billing judgment’ with respect to a claim of the
number of hours worked.” Malloy v. Monahan, supra, 73 F.3d at 1018. “Counsel for the
prevailing party should make a good faith effort to exclude from a fee request hours that are
excessive, redundant, or otherwise unnecessary, . . . [h]ours that are not properly billed to one’s
client also are not properly billed to one’s adversary pursuant to statutory authority.” Hensley v.
Eckerhart, supra, 461 U.S. at 434. Hence, the court has a “corresponding obligation to exclude
hours ‘not reasonably expended’ from the calculation.” Malloy v. Monahan, supra, 73 F.3d at
1018.
In her initial motion, Plaintiff asserts that Mr. Larson reasonably expended 14.1 hours in
the litigation of this matter through the date of filing. In support of this assertion, Plaintiff
provides an itemization of the time, a corroborating affidavit from Mr. Larson, and an affidavit
from Richard B. Wynkoop, an attorney that also brings cases under the FDCPA in this district.
Mr. Wynkoop avers that he reviewed the time expended by Mr. Larson “and finds it consistent
with similar legal practices and reasonable for the work expended.” He avers that the time is
reasonable in light of the amount in controversy, the time required to effectively represent the
client, the complexity of the case, the value of the legal services, and customary practice.
In response, Client Services argues that the hours sought are excessive in that this matter
consisted of a straight-forward allegation, that was resolved quickly, saw virtually no litigation
and, furthermore, Plaintiff had previously filed two very similar cases in which Mr. Larson was
her counsel. In addition, it argues that the itemization documenting Mr. Larson’s hours contains
excessive billing on the file, block billing, and administrative/clerical time, which it asserts is not
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recoverable. Thus, Client Services argues that Plaintiff should be awarded no more than 4.7
hours or $1,175.00 in total fees (4.7 hours at $250 per hour).
Based on my review of the briefs, the billing records therein, and attached affidavits, I
conclude that Plaintiff has not met her burden of showing that each of the 14.1 hours was
reasonably expended in this litigation. First, and most notably, I agree that the total number of
hours sought are excessive when, as here, litigation was almost non-existent – in that an offer of
judgment was made by Client Services just 6 days after Plaintiff filed her complaint and 3 days
after being served, it was accepted within two weeks, and judgment entered merely 25 days after
Plaintiff filed her complaint – and, additionally, the merits of the case were never in serious
dispute.
Furthermore, I agree with Client Services that a large portion of the times itemized by
Mr. Larsen are excessive and/or duplicative. First, I note that the 6.8 hours billed by Mr. Larson
for his initial meetings with his client (3.7 hours) and for drafting and filing the complaint (3.0
plus .1 for electronic filing) is excessive when, as here, the attorney has not only filed numerous
such complaints, but also filed two with this particular client the previous year. Next, although it
is clearly a lawyer’s duty to communicate with his client during the pendency of the case, I find
that the billing is replete with phone calls (9 phone calls, for a total of one hour, over a five week
period) and letters to client (5 letters, for a total of .6 hours. over the same period of time) that
appear to be excessive, particularly in light of their continuing relationship. Moreover, it appears
that counsel listened to the audio recording – apparently related to Plaintiff’s allegations – and
reviewed her credit reports – arguably unrelated to the allegations – on 5/25/12, 5/31/12 and
again on 6/18/12.
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In addition, when aggregated, at least .5 hours were devoted to clerical or administrative
tasks – mostly items relate to the e-filing court documents. These types of tasks are not billable
at a lawyer’s hourly rate. See Missouri v. Jenkins by Agyei, 491 U.S. 274, 288 FN10, 109 S.Ct.
2463, 105 L.Ed.2d 229 (1989)(“purely clerical or secretarial tasks should not be billed at a
paralegal rate, regardless of who performs them). Moreover, the time itemized for drafting this
motion seeking attorney fees is excessive. My conservative estimate is that Mr. Larson billed
2.5 hours (of the total 14.1 sought) for preparing the motion and affidavit. As with the filing of
FDCPA, Mr. Larson likewise prepares motions for attorney fees in such cases regularly, often
using practically identical motions and affidavits for different cases.
Finally, I note that other judges – including myself – have recently found similar issues
with Mr. Larson’s billing and made comparable reductions in expended hours. See e.g. King v.
Midland Credit Mgmt., Inc., 11-cv-02808-CMA-BNB, 2012 WL 3590787 (D.Colo., Aug. 20,
2012)(reducing the requested hourly rate from $300 to $250 per hours, and reducing the hours
billed from 12.7 hours to 10 hours); White v. Cavalry Portfolio Services, LLC, 11-cv-2217-LTBKLM, 2012 WL 899280 (D.Colo., March 16, 2012)(reducing the requested 13.4 hours to 9.9
hours); Fournier v. Midland Credit Mgmt., Inc., 11-cv-02802-MJW-MEH, 2012 WL 470468 (D.
Colo. Feb. 13, 2012)(reducing 12.6 hours to 8.7 hours); Feder v. Midland Credit Mgmt., Inc., 11cv-02872-JLK , 2012 WL 266417 (D. Colo. Jan. 30, 2012)(reducing 11.9 hours to 8 hours).
Therefore, because I have determined that Plaintiff’s billing times in this matter are not
reasonable, I conclude that the 14.1 hours sought will be reduced as follows. First, I subtract the
.5 hours attributable to administrative duties. I take the remaining 13.6 hours and discount it by
25% – to account for excessive and duplicative billing – for a total of 10.2 hours. In presenting
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my determination, I note that I “need not identify and justify every hour allowed or disallowed.”
Malloy v. Monahan, supra, 73 F.3d at 1018; see also Fox v. Vice, –– U.S. ––, 131 S.Ct. 2205,
2217, 180 L.Ed.2d 45 (2011)(indicating that “[t]he essential goal in shifting fees is to do rough
justice, not to achieve auditing perfection. So trial courts may take into account their overall
sense of a suit, and may use estimates in calculating and allocating an attorney’s time”).
C. Supplemental Motion
In her supplemental motion, Plaintiff seeks additional fees for the time incurred – 3.5
hours of work at $250 per hour for a total of $875.00 – for replying to her initial motion and in
drafting and filing her supplemental motion. The itemization of time in the supplemental motion
is 1 hour for reviewing the response, 1.2 hours in drafting Plaintiff’s reply, emails and phone
calls totaling .5 hours, and .8 hours to draft the supplemental motion.
However, a claim for attorney fees “must be . . . filed no later than 14 days after the entry
of judgment.” Fed.R.Civ.P. 54(d)(2)(B)(I). Although Plaintiff’s initial motion was timely, her
supplemental motion was filed later than the 14 day limitation set forth in Rule 54(d). And while
courts have allowed untimely supplemental motions seeking attorney fees in certain
circumstances – such as when the local rules allow them or following the successful opposition
of an appeal – I conclude that the circumstances of this case do not lend toward allowing such
motion. See e.g. Mary-Jo Hyldahl v. AT&T, 2009 WL 2567197 (E.D. Mich. 2009); Bernback v.
Greco, 2007 WL 108293 (3rd Cir. 2007). In so ruling, I agree with Client Services that
Plaintiff’s request would seem to have no end point as she could, in theory, continually ask for
continued work in replying to her own motions, and then in filing new ones. I reject Plaintiff’s
argument that should could not have timely filed her supplemental motion because the attorney
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fees sought therein “had not yet been expended at that time.” If Plaintiff wished to seek fees for
the time spent responding to the reply in her initial motion, Rule 54 provides such a mechanism
by allowing a party to provide a “fair estimate” for the amount of fees sought. See Fed. R. Civ.
P. 54(d)(2)(B)(iii).
Therefore, I deny Plaintiff’s supplemental motion – seeking additional attorney fees for
3.5 hours allegedly incurred by her attorney in responding to his initial motion and in filing this
supplemental motion – on the basis that it is untimely pursuant to Fed. R. Civ. P. 54(d)(2)(B)(I).
D. Lodestar Amount
Using the determinations above, the lodestar amount is $2,550.00 (10.2 hours multiplied
by $250). This amount is “presumptively reasonable” and “may in rare circumstances be
adjusted to account for the presence of special circumstances.” Anchondo v. Anderson, supra,
616 F.3d at 1101 (citing Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 130 S.Ct. 1662, 1673,
176 L.Ed.2d 494 (2010)). Plaintiff does not argue, nor am I aware, that special circumstances
exist to support an adjustment. See Perdue v. Kenny A., supra, 559 U.S. at 553 (noting that “the
burden of proving that an enhancement is necessary must be borne by the fee applicant. . . [and]
a fee applicant seeking an enhancement must produce ‘specific evidence’ that supports the
award”). Accordingly, I conclude that a reasonable fee in this case is $2,550.00, and because
Plaintiff prevailed in her FDCPA action, I award her this amount pursuant to 5 U.S.C.
§1692k(a)(3).
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Therefore, IT IS ORDERED that Plaintiff’s Motion for Attorneys Fees [Doc #11] is
GRANTED up to $2,550.00, but the portion seeking an award above that amount is DENIED,
and Plaintiff’s Supplemental Motion for Attorneys Fees [Doc #15] is DENIED.
Date: March
18
, 2013 in Denver, Colorado.
BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK, JUDGE
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