Danielle Randle v. H&P Capital, Incorporated, No. 10-2258 (4th Cir. 2013)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-2258 DANIELLE RANDLE, Plaintiff - Appellee, v. H&P CAPITAL, INCORPORATED; GARY ROBERT HENRION; NOEL LOUIS POOLER, Defendants Appellants, and MS. ROBERTS, Defendant. Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. Robert E. Payne, Senior District Judge. (3:09-cv-00608-REP) Submitted: November 27, 2012 Decided: March 5, 2013 Before MOTZ, KING, and WYNN, Circuit Judges. Dismissed in part; affirmed in part by unpublished per curiam opinion. Steven R. Dunn, Dallas, Texas, for Appellants. Dale W. Pittman, LAW OFFICE OF DALE W. PITTMAN, P.C., Petersburg, Virginia; Owen Randolph Bragg, HORWITZ, Illinois, for Appellee. HORWITZ & ASSOCIATES, Chicago, Unpublished opinions are not binding precedent in this circuit. 2 PER CURIAM: H&P Capital, Incorporated ( H&P ), Gary Robert Henrion, and Noel Louis Pooler appeal the district court s award of attorney s fees in this litigation brought by Danielle Randle pursuant to the Fair Debt Collection Practices Act ( FDCPA ), 15 U.S.C.A. §§ 1692 1692p (West 2009 & Supp. 2012), and the Florida Consumer Collections Practices Act ( FCCPA ), Fla. Stat. §§ 559.55 559.785 (2010). We dismiss the appeal in part and affirm in part. As an initial matter, counsel for Henrion has filed a suggestion of death, informing us of Henrion s death during the pendency of the appeal. the decedent and We have informed the known survivor of counsel for the parties of the need for substitution if the survivor or any personal representative of the decedent s estate desires the further prosecution of the appeal. Counsel and the survivor have not informed us of any such desire. Accordingly, pursuant to Fed. R. App. P. 43(a), we dismiss the appeal as to Henrion. Atlanta, Thomas, 908 655 F.2d 843, 846 F.2d 568, 569 n.1 (5th Crowder v. Hous. Auth. of (11th Cir. Cir. Unit 1990); A Gamble v. Aug. 1981). Appellants H&P and Pooler, however, continue to prosecute the appeal, and we turn now to their challenges to the district court s fee award. 3 Randle s complaint alleged that H&P, Henrion, Pooler, and a Defendant identified as Ms. Roberts violated the FDCPA by leaving messages on her answering machine and telephone voicemail that failed to inform her the communications were from a debt collector and falsely implied that legal action had been taken and by willfully engaging in other conduct reasonably be expected to abuse or harass. that could Randle brought the action on her own behalf and on behalf of three classes of Virginia residents Defendants. action, who received similar messages from She sought certification of the action as a class declaratory relief under the FDCPA, injunctive and declaratory relief under the FDCPA and FCCPA, statutory damages under the FDCPA and FCCPA, and attorney s fees, expenses, and costs under both acts. Prior however, the case settled. to any class certification, The parties agreed that Defendants would pay Randle $6,000 in full and final settlement of all of her claims, plus attorney s fees incurred to prosecute her individual claims. Counsel for Randle subsequently submitted requests for attorney s fees and costs totaling $89,083.69. § 1692k(a)(3) (mandating the payment of See 15 U.S.C.A. reasonable attorney s fees and costs to a successful consumer under the FDCPA). district court referred the request to a magistrate judge 4 The pursuant to 28 U.S.C.A. § 636(b)(1)(A) (West 2006 & Supp. 2012). The magistrate judge recommended that the district court award Randle $85,966.59 sustained in Defendants fees and objection costs. to The the district recommended court award of attorney s fees to O. Randolph Bragg -- one of the two attorneys who represented Randle in the proceedings below -- in the amount of $9,090.00, recommended adopted fee, and the recommendation awarded Randle except $76,876.59 as in to that attorney s fees and costs. It is for the district court in the first instance to calculate an appropriate award of attorney s fees. Wolpoff & Abramson, 53 F.3d 626, 628 (4th Carroll v. Cir. 1995). On appeal, this court has a duty to affirm an attorney s fee award which falls within the district court s broad discretion. Id. (internal quotation marks and alteration omitted). As the district court recognized, its discretion in awarding attorney s fees is guided by the twelve factors first set forth in Johnson v. Ga. Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974), and adopted by this court in Barber v. Kimbrell s, Inc., 577 F.2d 216, 226 (4th Cir. 1978). The Barber factors and include such considerations as the time labor required, the difficulty of the issues litigated, customary fees in similar situations, and the results obtained. 5 These factors, however, usually are subsumed within the initial calculation of hours reasonably expended at a reasonable hourly rate[, i.e., the lodestar]. (1983). Hensley v. Eckerhart, 461 U.S. 424, 434 n.9 When . . . the applicant for a fee has carried his burden of showing that the claimed rate and number of hours [expended] are reasonable, the [lodestar] is presumed to be the reasonable fee contemplated by the statute. 465 U.S. 886, 897 (1984). Blum v. Stenson, The FDCPA, however, does not mandate a fee award in the lodestar amount, and the district court maintains the circumstances. The discretion to depart from it in appropriate Carroll, 53 F.3d at 629. district court in this case explained its rationale for awarding the attorney s fee, discussing relevant Barber factors in concluding that Randle s counsel expended a reasonable hourly rate number of for hours their and services. in calculating Appellants a argue reasonable that the district court abused its discretion in awarding attorney s fees because the award fails to account for Randle s lack of success on her class claims and efforts to obtain non-monetary relief. * We reject this argument. * As part of this argument, Appellants also argue that the district court erred by failing to properly consider the theory of proportionality and in failing to conduct an analysis of the claims on which Randle failed and the claim on which she prevailed in awarding attorney s fees. Appellants, (Continued) 6 The Supreme Court has noted generally that the most critical factor in determining the reasonableness [attorney] fee award is the degree of success obtained. of a[n] Farrar v. Hobby, 506 U.S. 103, 114 (1992) (internal quotation marks omitted) (observing that a nominal damages award bears on the propriety of fees awarded pursuant to 42 U.S.C. § 1988 (2006)). Our precedents demonstrate that a district court may decrease the amount of fees that might otherwise be awarded in order to account for the plaintiff s limited success. McDonnell v. Miller Oil Co., Inc., 134 F.3d 638, 641 (4th Cir. 1998) (citing cases). Randle s recovery in this case, however, was not nominal. Indeed, she was highly successful, settling all of her claims for $6,000, six times the maximum recovery amount permitted for individual actions under the FDCPA, 15 U.S.C.A. § 1692k(a)(2)(A), and the district court s fee award accounts for the work performed by Randle s attorneys in pursuing this successful outcome. Insofar as Appellants may be advancing an argument that evaluates the relative importance of the kinds of relief sought by Randle as a basis for overturning the district however, do not explain what a proper consideration would have entailed or how such an analysis would have aided the district court in this case. Moreover, it is clear from the record that the district court considered the fact that the parties agreed that Defendants would pay attorney s fees incurred to prosecute Randle s individual claims. 7 court s fee award, we reject their effort. See Mercer v. Duke Univ., 401 F.3d 199, 205 (4th Cir. 2005) (holding that courts evaluating the degree successful and unsuccessful determine what the of success on claims plaintiff the merits between should not attempt have thought the would to more important form of relief). We also reject as meritless Appellants challenges based on Randle s attorneys evaluation of her case and the lack of any need for the participation of attorney Bragg. The challenge regarding the attorneys evaluation of Randle s case is unexplained and not supported by any evidence of record. Further, Appellants arguments regarding attorney Bragg fail to explain in any principled fashion how the district court abused its discretion in awarding fees for his work in this case. Finally, we reject as wholly without merit Appellants argument that the district significantly court reduce abused -- its by an discretion unspecified in failing figure -- to the attorney fee awarded in this case on the bases that Randle did not prevail on her claims and her attorneys allegedly excessive billing. Accordingly, we dismiss the appeal in part and affirm the district court s judgment in part. We dispense with oral argument because the facts and legal contentions are adequately 8 presented in the materials before this court and argument would not aid the decisional process. DISMISSED IN PART; AFFIRMED IN PART 9