Tomovich v. Wolpoff & Abramson, L.L.P., No. 3:2008cv01428 - Document 39 (S.D. Cal. 2009)
Court Description: ORDER denying 35 Plaintiff's Motion for Reconsideration. The Clerk of Court shall close thefile. Signed by Magistrate Judge Barbara Lynn Major on 10/22/09. (tkl)
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Tomovich v. Wolpoff & Abramson, L.L.P. Doc. 39 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 CATHARINE J. TOMOVICH CATHIE J. TOMOVICH, a/k/a ) ) ) Plaintiff, ) ) v. ) ) WOLPOFF & ABRAMSON, L.L.P., ) ) Defendant. ) ) Case No. 08cv1428-JM (BLM) ORDER DENYING EX PARTE MOTION FOR RECONSIDERATION OF FEES AWARD AND TERMINATING CASE [Doc. No. 35] 17 The underlying action concerns Defendant’s alleged violations of 18 the federal Fair Debt Collection Practices Act (FDCPA), and California’s 19 Rosenthal Fair Debt Collection Practices Act. 20 settled in April 2009 (Doc. No. 24) and, on August 7, 2009, this Court 21 granted in part and denied in part Plaintiff’s motion for attorney’s 22 fees. 23 instant ex parte motion for reconsideration of one aspect of the Court’s 24 fees order: the reasonable hourly rate awarded to one of her attorneys, 25 Elizabeth Arleo.1 Doc. No. 35 (Pl. Mot.). Defendant opposed Plaintiff’s Doc. No. 34 (Order). Doc. No. 1. The case On August 14, 2009, Plaintiff filed the 26 1 27 28 Two attorneys, Elizabeth Arleo and Shaun Khojayan, represented Plaintiff in the above matter, and the fees order established hourly rates for both. Order at 4-7. However, the motion for reconsideration contests only the Court’s finding with regards to Ms. Arleo’s billing rate, and the Court therefore addresses only this issue. Nonetheless, the Court notes that in many respects, the reasoning provided in this 08cv1428-JM (BLM) Dockets.Justia.com 1 motion. 2 reconsideration and opposition, as well as all previously-submitted 3 evidence and briefing concerning Plaintiff’s attorneys’ fees, and for 4 the reasons given below, the Court 5 reconsideration. Doc. No. 36 (Opp’n). 6 7 After reviewing DENIES the motion for Plaintiff’s motion for LEGAL STANDARD In FDCPA actions, the prevailing party may be awarded “reasonable 8 attorney’s fees as determined by the court.” 9 Attorney’s fees are calculated by the lodestar method, whereby a court 10 multiplies the number of hours an attorney reasonably spent on the case 11 by the attorney’s reasonable hourly rate. 12 67 F.3d 248, 252 (9th Cir. 1995) (citing Blum v. Stenson, 465 U.S. 886, 13 895 (1984)). 14 comparing the requested rate with that “prevailing in the community for 15 similar services of lawyers with reasonably comparable skill, experience 16 and reputation.” 17 979 (9th Cir. 2008) (citation omitted); Blum, 465 U.S. at 895 n.11. 18 determining the reasonableness of fee requests, the Court also may 19 consider: 20 difficulty of the issues; (3) the skill requisite to perform the legal 21 service properly; (4) the preclusion of employment by the attorney due 22 to acceptance of the case; (5) the customary fee; (6) time limitations 23 imposed by the client or the circumstances; (7) the amount involved and 24 the results obtained; (8) the undesirability of the case; (9) the nature 25 and length of the professional relationship with the client; and (10) 26 awards in similar cases. (1) 15 U.S.C. § 1692k(a)(3). McGrath v. County of Nevada, An attorney’s reasonable hourly rate is determined by Camacho v. Bridgeport Financial, Inc., 523 F.3d 973, the time and labor required; (2) the novelty In and Christensen v. Stevedoring Services of 27 28 order with regards to Ms. Arleo applies equally to Mr. Khojayan. 2 08cv1428-JM (BLM) 1 America, 557 F.3d 1049, 1053 (9th Cir. 2009) (citing Van Gerwen v. 2 Guarantee Mu. Life Co., 214 F.3d 1041, 1045 n.2 (9th Cir. 2000). 3 “To inform and assist the court in the exercise of its discretion, 4 the burden is on the fee applicant to produce satisfactory evidence- in 5 addition to the attorney’s own affidavits- that the requested rates [are 6 reasonable].” 7 “[d]eclarations from the fee applicant do not conclusively establish the 8 prevailing market rate.” 9 has a burden of rebuttal that requires submission of evidence to the 10 district court challenging the accuracy and reasonableness of the ... 11 facts asserted by the prevailing party ...” 12 Deukmejian, 987 F.2d 1392, 1397-98 (9th Cir. 1992)). 13 Id. at 980 (citing Blum, 465 U.S. at 896 n.11). Id. However, “The party opposing the fee application Id. at 980 (citing Gates v. The district court has a “great deal of discretion” to determine 14 the appropriate hourly rate. 15 court must provide a “concise but clear explanation of its reasons for 16 the fee award.” Gates, 987 F.2d at 1398. Nonetheless, a Hensley v. Eckerhart, 461 U.S. 424, 437 (1983). 17 DISCUSSION 18 In her motion for reconsideration, Plaintiff contends that the 19 Court improperly relied on the simplicity of the underlying case when 20 calculating both the number of hours awarded to Ms. Arleo and Ms. 21 Arleo’s hourly rate. 22 that the Court increase Ms. Arleo’s reasonable hourly rate for work on 23 this case from the previously-assessed $300/hour to $350/hour. 24 1. 25 made by two courts (which already were distinguished in this Court’s 26 previous order), but offers no new facts justifying her request. 27 Order at 6-7 (discussing other cases). 28 order was properly decided, and distinguishes the authority upon which Pl. Mot. at 1-3. Plaintiff therefore requests Id. at In support of the increased rate, Plaintiff again cites findings 3 Id.; Defendant argues that the fees 08cv1428-JM (BLM) 1 Plaintiff relies.2 Opp’n at 3-5. 2 When determining fee awards, courts may not use the “novelty and 3 complexity” of the issues to determine both the reasonable hourly rate 4 and the reasonable number of hours expended on litigation. Van Skike v. 5 Dir., Office of Workers’ Comp. Programs, 557 F.3d 1041, 1048 (9th Cir. 6 2009) (citing Blum, 465 U.S. at 898-99). 7 hourly rate is generally determined based upon the prevailing hourly 8 rate in the community, rather than upon the complexity of the issues, 9 which should be reflected in the reasonable number of hours.” Additionally, “the reasonable Id. 10 Here, the Court found the underlying FDCPA litigation to be non- 11 complex, and considered this, among several other factors, when reducing 12 the total hours used in the lodestar calculation. 13 Court also considered the simplicity of the case, among other factors, 14 in calculating Ms. Arleo’s hourly rate. 15 case’s simplicity was used to determine both the number of hours and the 16 hourly rate, the Court revisits its previous Order. 17 reviewing the evidence and arguments pertaining to Ms. Arleo’s hourly 18 rate, the Court still finds $300/hour to be reasonable. Order at 8-10. Id. at 5-7. The Insofar as the However, after 19 1. 20 Both parties submitted expert declarations regarding Ms. Arleo’s Expert Declarations Regarding Ms. Arleo’s Hourly Rate. 21 hourly rate. 22 Plaintiff submitted the Hensley Declaration, drafted by a fees expert 23 for Ms. Arleo’s work in Gonzales v. Arrow Financial Services, LLC, 24 05cv171-JAH (RBB) (S.D. Cal. January 28, 2005), a class action pending In support of her originally-requested rate of $380/hour, 25 26 27 28 2 Defendant also argues that the rule of civil procedure under which Plaintiff brings the instant motion, Fed. R. Civ. P. 60, does not apply here, and that Plaintiff therefore is barred from moving for reconsideration. Opp’n at 2. However, it is within the Court’s discretion to revisit its own judgments, and the Court elects to do so here. See Fidelity Federal Bank, FSB v. Durga Ma Corp., 387 F.3d 1021, 1024 (9th Cir. 2004); Kingvision Pay-Per-View Ltd. v. Lake Alice Bar, 168 F.3d 347, 350 (9th Cir. 1999). 4 08cv1428-JM (BLM) 1 in this District. 2 the reasons stated in this Court’s previous fees order, the Hensley 3 Declaration does not pertain to the instant case: 4 5 6 7 8 9 10 Doc. No. 29-3 Ex. 3 (Hensley Decl.). However, for First, Gonzales is a significantly more complicated case; a years-long class action that proceeded to trial, and involved a class certification challenge, multiple dispositive motions, and motions in limine. This case, on the other hand, is a simple one. It concerns a single plaintiff and a single defendant, and the action’s factual basis is almost entirely comprised of five allegedly improper debt-collection letters and a number of phone calls to Plaintiff. Complaint. Discovery was straightforward, and Plaintiff took only one deposition. Arleo Decl. [Doc. No. 29-3] at 4-5. Similarly, Plaintiff’s claims are not complex, and several of them could be resolved by answering simple factual questions, i.e., did Defendant cease certain debt-collection communications after Plaintiff requested that it do so. Complaint. 11 12 13 14 15 16 17 18 19 20 21 22 Second, Mr. Hensley’s declaration compares Plaintiff’s attorneys with those of the nation’s largest law firms, concluding that the attorneys’ hourly rates “would be gauged by the rates applicable to complex litigation in the top civil/commercial firms in the San Diego County community.” Hensley Decl at 5. Most notably, Mr. Hensley justifies Plaintiff’s attorneys’ hourly rates by comparing them to those charged in the 2001-08 Enron securities class-action litigation, prosecuted by Coughlin Stoia Geller Rudman & Robbins LLP. Hensley Decl. at 13-14. Fees charged in that case, a historic and notoriously complex action, in no way inform the reasonable hourly rate in this case. Nor does this case compare to the “complex litigation” undertaken by the nation’s largest firms. Hensley Decl. at 5. Although the rates of local attorneys practicing at large firms may help determine reasonable fees, Plaintiff fails to sufficiently compare the rates those attorneys would charge in similar cases, i.e., simple FDCPA litigation. Hensley Decl. Order at 4-6. Although this reasoning includes statements regarding the instant 23 case’s 24 counting” of the factor. 25 courts may not use same factor to adjust both hours claimed and hourly 26 rate). Rather, the statements demonstrate that (1) the cases with which 27 Plaintiff attempts to establish Ms. Arleo’s hourly rate do not involve 28 “similar services,” (i.e., class-actions, trial and/or dispositive simplicity, it does not constitute impermissible “double- Van Skike, 557 F.3d at 1048 (holding that 5 08cv1428-JM (BLM) 1 motion work, and the exhaustive discovery required of complex litigation 2 versus 3 Camacho, 523 F.3d at 979, and (2) there is insufficient evidence that 4 the lawyers with whom Mr. Hensley compares Ms. Arleo are of similar 5 “skill, experience or reputation,” (id.). 6 simplicity 7 independent basis for establishing Ms. Arleo’s hourly rate, but to 8 distinguish this case from the unusual and complex cases, which require 9 significant legal work and attorneys with more expertise and specialized singly of plaintiff the work with limited required in discovery and motion work), That is, the Court cited the the instant case not as an 10 knowledge, relied upon in the Hensley Declaration. 11 work cited and relied upon by Mr. Hensley in determining an appropriate 12 hourly rate is not similar to the legal work provided by Ms. Arleo in 13 this case so Mr. Hensley’s recommendation has minimal value in this 14 case. The type of legal 15 Additionally, the Hensley Declaration largely arrives at so-called 16 comparable rates by reference to the hourly fees charged “firmwide” 17 (that 18 thousands of attorneys of all levels of experience and in all practice 19 areas of several “large Los Angeles and San Diego law firms.” 20 Decl. at 5-7. 21 instant case involves a specific practice area, FDCPA litigation, in a 22 specific locale, the Southern District of California. 23 F.3d at 979 (for the purpose of establishing hourly rates, the relevant 24 community generally is the forum in which the district court sits). 25 Although courts deciding FDCPA fees may look to non-FDCPA litigation for 26 comparison, id. at 981, the Hensley Declaration does little to compare 27 the attorneys and duties cited with Ms. Arleo and her work in the 28 instant case. is, nationally and/or globally, depending on the firm) of Hensley Ms. Arleo does not work at a large law firm, and the See Camacho, 523 Again, the Hensley Declaration fails to demonstrate a 6 08cv1428-JM (BLM) 1 similarity between Ms. Arleo’s education and experience and those of the 2 comparison attorneys so the recommendation has minimal value in this 3 case. 4 satisfactory 5 Christensen, 557 F.3d at 980. Plaintiff therefore evidence” fails that the to meet her requested burden rate is to “produce reasonable. 6 A declaration submitted by Defendant’s expert, June Coleman, on the 7 other hand, more specifically addresses rates charged by FDCPA attorneys 8 in this district. 9 relevance is Ms. Coleman’s description of her own experience and hourly Doc. No. 31-1 (Coleman Decl.). Of particular 10 rate. 11 has practiced “regularly and extensively” in the areas of FDCPA and Fair 12 Credit Reporting Act defense. 13 has lectured and published articles in the area of collection law, and 14 works for the national trade organization for debt collectors. 15 During the time the instant case was prosecuted, Ms. Coleman’s hourly 16 rate for private clients in the Southern District was $195-$250. Id. at 17 6. 18 reasonable hourly rate “would be no more than $300 per hour, and is more 19 likely $250 per hour.”3 20 Ms. Coleman has been an attorney since 1999, and during that time Coleman Decl. at 2. She also regularly Id. Based on her experience, Ms. Coleman opined that Ms. Arleo’s Id. at 7. Ms. Arleo also has been an attorney since 1999. Arleo Decl. Ex. 3 21 at 1. 22 Lerach, where she represented plaintiffs in securities, labor, and 23 consumer cases. 24 plaintiffs in class actions (id.), From 1999 to 2005, she worked at Milberg Weiss Bershad Hynes & Id. at 1-2. Since 2005, she has continued to represent and also has prosecuted a number of 25 26 27 28 3 Defendant also submits a Declaration from Greg Olson, stating that Ms. Arleo’s reasonable rate is $300-$350/hour. Doc. No. 31 Ex. 5 at 7. However, this figure is based on little more than Mr. Olson’s statements that the case was narrow in scope and brought by a single plaintiff. Id. As with the Hensley Declaration, this lack of specificity diminishes the weight the Court gives to the recommendation. 7 08cv1428-JM (BLM) 1 FDCPA cases in this district. 2 Langley v. Check Game Solutions, 05cv2265-W (AJB) (S.D. Cal. December 3 13, 2005); Mial v. Elite Recovery Services, 06cv1851-DMS (RBB) (S.D. 4 Cal. September 13, 2006); Bracken et al. v. Eskanos & Adler, P.C. et 5 al., 06cv2288-H (BLM) (S.D. Cal. October 11, 2006); Doc. No. 29 at 8 6 (Plaintiff’s 7 experience prosecuting consumer, FDCPA and other class actions”). There 8 is no evidence that Ms. Arleo had any FDCPA experience prior to 2005. motion for See, e.g., fees, stating Gonzales, 05cv171-JAH (RBB); Ms. Arleo “has extensive 9 In light of Ms. Coleman’s experience in FDCPA litigation, and the 10 fact that she has been practicing law for the same number of years as 11 Ms. Arleo, Ms. Coleman is the best example provided by either party of 12 an attorney of “similar skill, experience and reputation” to Ms. Arleo 13 who performs “similar services” to those performed by Ms. Arleo in the 14 instant case. 15 directly applicable to this case. 16 significantly more years of FDCPA experience (nine as compared to five) 17 and is a lecturer and author in the field, charges $195-$250/hour in the 18 Southern District. 19 Coleman’s opinion that Ms. Arleo’s reasonable rate is $250-$300/hour, 20 recommends a much lower rate than the $350/hour requested by Plaintiff. 21 On the other hand, Ms. Arleo’s previous experience at a well-known 22 plaintiff’s law firm, and the fact that she took the instant case on a 23 contingency fee basis and prevailed, recommend a slight increase in her 24 hourly rate. 25 (contingency fees may support a higher hourly rate). 26 weighing these factors, considering the parties’ declarations, and 27 giving particular weight to Ms. Coleman’s statements, the Court finds 28 $300/hour to be a reasonable rate for Ms. Arleo in the instant case. Camacho, 523 F.3d at 979. As such, her hourly rate is However, Ms. Coleman, who has Coleman Decl. at 6. This fact, combined with Ms. See Blum, 465 U.S. at 903 (concurrence, Brennan, J.) 8 Therefore, after 08cv1428-JM (BLM) 1 2. 2 In support of her motion for reconsideration, Plaintiff cites two 3 orders awarding Ms. Arleo $350/hour: Hess v. Ramona Unified School 4 District, 2008 WL 5281243 (S.D. Cal. Dec. 19, 2008) and Langley, 2007 WL 5 2701345 (S.D. Cal. Sept. 13, 2007). 6 look to other fee awards as evidence of an attorney’s market rate, the 7 Ninth Circuit recently admonished judges to exercise caution when doing 8 so. 9 “tautological, self-referential exercise” of “recast[ing] fee awards 10 made by previous courts into ‘market’ rates”) (quoting Student Pub. 11 Interest Research Group of N.J. v. AT & T Bell Laboratories, 842 F.2d 12 1436, 1446 (3d Cir. 1988)). 13 useful, and looks to them to establish a general range for the value of 14 Ms. Arleo’s services, its holding in the instant case is not controlled 15 by the previous awards. Fees Awarded to Ms. Arleo in Other FDCPA Cases. Pl. Mot. at 1. Although courts may Christensen, 557 F.3d at 1054 (warning courts not to engage in the Thus, although the Court finds these cases 16 Furthermore, the Court already has distinguished the nature of work 17 performed in Hess and Langley from that performed in the instant case. 18 Order at 6-7. 19 notes that Ms. Arleo’s hourly rate was not contested in Langley, and 20 that the Hess court based its decision in part on the Defendants’ 21 failure to “support their contention that [Ms. Arleo’s] rates are 22 unreasonably high with any evidence, such as competing declarations.” 23 Hess, 2008 WL 5281243 at *3; Langley, 2007 WL 2701345 at *4. 24 Defendant offered substantial evidence contesting Ms. Arleo’s requested 25 hourly 26 differentiating the instant case from Hess and Langley. 27 Mendenhall v. Nat’l Transp. Safety Bd., 213 F.3d 464, 472 (9th Cir 2000) 28 (fee rate, In addition to the reasons already stated, the Court including applicant’s initial two expert burden is 9 declarations, not high when thereby Here, further Doc. No. 31; request is not 08cv1428-JM (BLM) 1 challenged); Camacho, 523 F.3d at 980 (a “wide spectrum of reasonable 2 hourly rates” may exist “even for work performed by the same attorney”). 3 3. 4 Other factors also argue in favor of a reduced hourly rate for Ms. Other Factors. 5 Arleo. 6 consider when awarding fees). 7 ongoing professional relationship with Ms. Arleo such that a higher 8 hourly rate would be merited. 9 prosecute the case, and there is no evidence, such as requests to 10 continue deadlines, that she struggled under time pressure. Id. Third, 11 after reviewing Ms. Arleo’s time sheets, the Court does not find that 12 Ms. Arleo’s work on Plaintiff’s case was so demanding of time that it 13 precluded her from accepting other employment. 14 & Doc. No. 33 Ex. 10 (time sheets). 15 minimal and the case settled for a small sum. 16 1053; Doc. No. 30 (settlement agreement, filed under seal). See Christensen, 557 F.3d at 1053 (listing factors a court may First, Plaintiff does not allege an Id. Second, Ms. Arleo had ample time to Id.; Arleo Decl. Ex. 1 Finally, the amount involved was Christensen, 557 F.3d at 17 For the reasons provided above, the Court finds a rate of $300/hour 18 reasonable for Ms. Arleo’s work on the instant case. Plaintiff’s motion 19 for reconsideration therefore is DENIED. 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 10 08cv1428-JM (BLM) 1 CONCLUSION 2 Pursuant to this Court’s original order, Defendant paid Plaintiff 3 $42,725.95 in attorney’s fees and confirmed payment on September 1, 4 2009. 5 issue, and this case is terminated. 6 file. 7 8 Doc. No. 37. The instant order resolves the only outstanding The Clerk of Court shall close the IT IS SO ORDERED. DATED: October 22, 2009 9 10 BARBARA L. MAJOR United States Magistrate Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11 08cv1428-JM (BLM)
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