Dryden v. Accredited Collection Agency Inc. et al, No. 3:2014cv00255 - Document 17 (E.D. Va. 2015)
Court Description: MEMORANDUM OPINION. Signed by District Judge James R. Spencer on 6/10/2015. (jsmi, )
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Dryden v. Accredited Collection Agency Inc. et al Doc. 17 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF VIRGINIA RICHMOND DIVISION KAREN DRYDEN, Plaintiff, v. Civil Action No. 3:14-CV-255 ACCREDITED COLLECTION AGENCY, INC. et al., Defendants. MEMORAN D U M OPIN ION THIS MATTER is before the Court on Plaintiff’s Motion and Mem oranda in Support of Entry of Default J udgm ent and Attorney Fees (“Motion”) (ECF No. 16). Defendants, Accredited Collection Agency, Inc. (“ACA”) and J eff Winters (“Winters”), have not responded to this Motion nor any prior m otion filed in this m atter, and the deadline to respond has passed. For the reasons set forth below, the Motion is GRANTED in part and DENIED in part. I. BACKGROU N D a. Fa ct u a l Ba ck g r o u n d All of the following facts are drawn from Plaintiff’s Com plaint, as Defendants have not responded to the Com plaint. In approxim ately Novem ber 20 12, Plaintiff Karen Dryden (“Dryden” or “Plaintiff”) was contacted by the nam ed Defendants in an attem pt to collect a consum er debt she allegedly owed. Defendants began calling Dryden at her place of em ploym ent. On Decem ber 5, 20 12, Dryden’s em ployer advised Defendants that such calls to Dryden were prohibited under the com pany’s policies. Defendants, however, continued to call Dryden at her place of em ploym ent, occasionally scream ing at her in their efforts to extract paym ent. Unable to stop Defendants’ calls her to place of em ploym ent, Dryden obtained counsel 1 Dockets.Justia.com with Centennial Law Offices. On February 8, 20 13, staff from Centennial Law Offices contacted Defendants and advised them that Dryden was represented by counsel. On April 1, 20 13, staff from Centennial Law Offices contacted Defendants a second tim e to obtain inform ation on the debt Dryden allegedly owed. Defendants were provided with contact inform ation for Dryden’s counsel. On April 9, 20 13, Defendants left a voicem ail for Dryden on her work num ber, the content of which is substantially as follows: This is Daisy King calling from ACA Recovery. When you get the m essage would you please give m e a call 20 1-670 -88 51. Your reference num ber is 99GHSJ and I will try for your cellular. Thank you. On October 7, 20 13, Defendants left a voicem ail for Dryden on her work num ber, the content of which is substantially as follows: This is an im portant m essage for Karen Dryden. My nam e is Gary J am es. I’m calling from the com pany known as ACA Recovery now United Credit Specialist. I’m calling in reference to Mypayday Loan. Okay, there’s a balance here $ 132.50 . According to what I’m looking here, you already paid nearly all the way off, okay. Please return m y call okay. Let’s discuss this. Like I said, m y nam e is Gary J am es. My num ber is 80 0 -356-3713. And when you call, it’s very im portant that you refer to reference ID num ber 99GHSJ . Thank you very m uch. Additionally, Defendants added $ 50 .0 0 in “fees” to the principle am ount Dryden allegedly owed on the debt. b. Pr o ce d u r a l Ba ck g r o u n d On April 14, 20 14 1, Plaintiff filed her Com plaint against six nam ed Defendants 2 alleging violations of the Fair Debt Collection Practices Act (“FDCPA”). On October 2, 20 14, the Clerk entered a Notice of Abatem ent (ECF No. 5), which gave Plaintiff fifteen days to show the Court good cause why the defendants had not been served within 120 days of the filing of the Com plaint. On October 15, 20 14, two sum m onses were returned executed on ACA, who was 1 Although Plaintiff’s Com plaint was not docketed until April 14, 20 14, Plaintiff filed a m otion for leave to proceed in form a pauperis (“IFP”) on April 9, 20 14, with her Com plaint attached. The filing of the m otion to proceed IFP should be deemed to com m ence the action. See 28 U.S.C. § 1915(a). 2 The six Defendants included ACA and Winters as well as Daisy King, Gary J am es, United Credit Specialist and Does 1-5. The four latter Defendants were term inated on Novem ber 14, 20 14, and are not addressed in the present Motion. 2 served on J une 5, 20 14, and Winters, who was served on J une 17, 20 14. Subsequently, default was requested as to ACA and Winters on October 21, 20 14 (ECF Nos. 8, 9) and was entered against both defendants on October 30 , 20 14 (ECF Nos. 10 , 11). On Novem ber 7, 20 14, Plaintiff filed an Am ended Com plaint (ECF No. 12), which was dism issed by this Court sua sponte for failure to com ply with Rule 15 of the Federal Rules of Civil Procedure (ECF No. 13). Plaintiff subsequently sought leave to file an Am ended Com plaint (ECF No. 14), but that request was denied because Plaintiff again failed to satisfy Rule 15 (see ECF No. 15). On May 6, 20 15, Plaintiff filed the instan t m otion requesting the entry of default judgm ent against Defendants ACA and Winters. She seeks actual and statutory dam ages as well as attorney’s fees and costs. II. LEGAL STAN D ARD Obtaining default judgm ent is a two-step process. First, the Clerk of the Court m ust enter default. “Entry of default is an interlocutory order – entered in anticipation of a final judgm ent – form ally recognizing that a party ‘has failed to plead or otherwise defend as provided by [the Federal Rules of Civil Procedure].’” United States v. $ 23,0 0 0 in U.S. Currency , 356 F.3d 157, 163 (1st Cir. 20 0 4) (quoting Fed. R. Civ. P. 55(a)). The second step is the actual default judgm ent, which is “a final disposition of the case and an appealable order that has the sam e effect as a judgm ent rendered after a trial on the m erits.” Id. (internal citation and quotation m arks om itted). Rule 55 of the Federal Rules of Civil Procedure governs default judgm ent. The Rule provides “[w]hen a party against whom a judgm ent for affirm ative relief is sought has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise, the clerk m ust enter the party’s default.” Fed. R. Civ. P. 55(a). After the Clerk enters default, the Clerk or the Court m ay enter default judgm ent. The Clerk enters default judgm ent “[i]f the plaintiff’s claim is for a sum certain or a sum that can be m ade certain by com putation. . . .” Fed. R. Civ. P. 55(b)(1). 3 In all other cases, the Court enters default judgm ent. Fed. R. Civ. P. 55(b)(2). The Court can “conduct hearings or m ake referrals . . . when, to enter or effectuate judgm ent, it needs to: (A) conduct an accounting; (B) determ ine the am ount of dam ages; (C) establish the truth of any allegation by evidence; or (D) investigate any other m atter.” Id. Default judgm ent is warranted if a defendant fails to plead or otherwise defend itself. Music City Music v. Alfa Foods, Ltd., 616 F. Supp. 10 0 1, 10 0 2 (E.D. Va. 1985). The party requesting default judgm ent m ust show: (1) when and against what party the default was entered; (2) identification of the pleading to which default was entered; (3) whether the defaulting party is an infant or incom petent person; (4) that the defendant is not in m ilitary services; and (5) that notice has been served on the defaulting party, if required by Fed. R. Civ. P. 55(b)(2).” JTH Tax, Inc. v. Sm ith, No. 2:0 6CV76, 20 0 6 WL 1982762, at *1 (E.D. Va. J une 23, 20 0 6). III. (i) D ISCU SSION Default J udgm ent Accepting the well-pleaded factual allegations in the com plaint regarding liability as true, Plaintiff sufficiently alleges all of the elem ents needed to satisfy an FDCPA claim against ACA. See Ry an v. Hom ecom ings Fin. N etw ork, 253 F.3d 778, 78 0 (4th Cir. 20 0 1) (requiring a court considering a default m otion to determ ine whether a plaintiff’s well-pleaded allegations support the relief sought). “In order to prevail on a FDCPA claim a Plaintiff m ust prove that: (1) the plaintiff has been the object of collection activity arising from consum er debt, (2) the defendant is a debtor [sic] collector as defined by the FDCPA, and (3) the defendant has engaged in an act or om ission prohibited by the FDCPA.” Dikun v. Streich, 369 F. Supp. 2d 781, 784– 85 (E.D. Va. 20 0 5) (citation om itted). As to the first elem ent, “a consum er debt is defined as an obligation or alleged obligation ‘to pay m oney arising out of a transaction in which the m oney, property, insurance, or services which are the subject of the transaction are prim arily for personal, fam ily, or household purposes[.]’” Finney v. MIG Capital Mgm t., Inc., No. 2:13-0 2778, 20 14 WL 1276159, at * (S.D. 4 W. Va. Mar. 27, 20 14) (quoting 15 U.S.C. § 1692a(5)). In her Com plaint, Plaintiff alleges that “[i]n approxim ately Novem ber of 20 12 Defendants began contacting Ms. Dryden in an attem pt to collect a consum er debt she allegedly owed.” (Com pl. ¶ 7.) For the second elem ent, the FDCPA defines a debt collector as “any person who uses any instrum entality of interstate com m erce or the m ails in any business the principal purpose of which is the collection of any debts, or who regularly collects or attem pts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another.” 15 U.S.C. § 1692a(6). However, “[o]fficers are not liable under the FDCPA solely by virtue of the offices that they hold.” Thom as v. Finneran, No. 7:0 9CV0 0 354, 20 0 9 WL 2588348, at *1 (W.D. Va. Aug. 20 , 20 0 9). Rather, a plaintiff m ust allege “specific factual support for the allegation that the corporations’ officers . . . them selves engaged in activities that would qualify them as debt collectors under the FDCPA.” Id. Here, the Com plaint alleges that (1) ACA is a New J ersey corporation and J eff Winters is the chief executive officer of ACA, (Com pl. ¶ 3); (2) Defendants used the telephone to engage in debt collection, (id. at ¶¶ 8, 9, 12, 13); and (3) “Defendan ts regularly operate as third-party debt collectors and are ‘debt collectors’ as defined by 15 U.S.C. 1692a,” (id. at ¶ 6.) Although Plaintiff’s Com plaint sufficiently alleges that ACA is a debt collector, Plaintiff has not sufficiently alleged that Winters him self is a debt collector. Instead, Plaintiff apparently relies on the fact that Winters is the chief executive officer of ACA, and thus im putes liability to him . (See Com pl. ¶ 3.) Pursuant to Finneran, 20 0 9 WL 2588348 , at *1, because Plaintiff did not allege specific factual support that Winters him self is a debt collector, 3 the Motion is DENIED as to Winters. 4 3 To be sure, the Com plaint only notes voicem ail m essages from Daisy King and Gary J am es. (Com pl. ¶¶ 12, 13.) The Com plaint is factually devoid of any actions taken specifically by Winters. 4 Plaintiff cites m ultiple out-of-circuit cases in support of her proposition that Winters, as the chief executive officer of ACA, can be a “debt collector” as that term is defined in the FDCPA. (See Mot. at 9.) However, Plaintiff’s cited cases do not dispute the holding in Finneran. Indeed, the cases affirm that although “[a] high ranking em ployee, executive or director of a collection agency m ay fit within the statutory definition of a debt collector,” the plaintiff m ust still “allege that the defendant was personally involved in the collection of the debt at issue.” Musso v. Seiders, 194 F.R.D. 43, 46 (D. Conn. 1999) (em phasis added). 5 Third, the Com plaint alleges five violations of the FDCPA, each of which will be discussed in turn. Count One of Plaintiff’s Com plaint alleges violations of 15 U.S.C. § 1692c(a)(2) 5 as Defendants “continu[ed] to m ake collection calls to Plaintiff after having actual knowledge that Plaintiff was represented by counsel and having the m eans to contact Plaintiff’s counsel.” (Com pl. ¶ 16.) On February 8, 20 13, Centennial Law Offices contacted Defendants and advised them that Dryden was represented by counsel. (Id. at ¶ 11.) On April 1, 20 13, Centennial Law Offices contacted Defendants again and Defendants were provided contact inform ation for Dryden’s counsel. (Id.) The Com plaint alleges that Defendants continued to place collection calls directly to Plaintiff, with m essages having been left on April 9, 20 13 and October 7, 20 13. (Id. at ¶¶ 12, 13.) Accordingly, Defendants violated 15 U.S.C. § 1692c(a)(2). In Count II, Plaintiff alleges that Defendants violated 15 U.S.C. §§ 1692d(6) 6 and 1692e(11) 7 “by failing to disclose that their com m unications were from a debt collector and being m ade in an attem pt to collect a debt.” (Com pl. ¶ 17.) 15 U.S.C. § 1692d(6) provides that a debt collector violates the section by placing telephone calls “without m eaningful disclosure of the 5 15 U.S.C. § 1692c(a)(2) states, (a) Without the prior consent of the consumer given directly to the debt collector or the express perm ission of a court of com petent jurisdiction, a debt collector m ay not comm unicate with a consumer in connection with the collection of any debt – (2) if the debt collector knows the consum er is represented by an attorney with respect to such debt and has knowledge of, or can readily ascertain, such attorney’s nam e and address, unless the attorney fails to respond within a reasonable period of tim e to a comm unication from the debt collector or unless the attorney consents to direct comm unication with the consumer . . . . 6 15 U.S.C. § 1692d(6) states, A debt collector m ay not engage in any conduct the natural consequence of which is to harass, oppress, or abuse any person in connection with the collection of a debt. Without lim iting the general application of the foregoing, the following conduct is a violation of this section: (6) Except as provided in section 1692b of this title, the placement of telephone calls without m eaningful disclosure of the caller’s identity. 7 15 U.S.C. § 1692e(11) states, A debt collector m ay not use any false, deceptive, or m isleading representation or m eans in connection with the collection of any debt. Without lim iting the general application of the foregoing, the following conduct is a violation of this section: (11) The failure to disclose in the initial written comm unication with the consum er and, in addition, if the initial comm unication with the consum er is oral, in that initial oral com m unication, that the debt collector is attem pting to collect a debt and that any inform ation obtained will be used for that purpose, and the failure to disclose in subsequent com m unications that the comm unication is from a debt collector, except that this paragraph shall not apply to a form al pleading m ade in connection with a legal action. 6 caller’s identity.” “‘Meaningful disclosure’ has been held to require the debt collector ‘to disclose the caller’s nam e, the debt collection com pany’s nam e, and the nature of the debt collector’s business.’” Ly nn v. Monarch Recovery Mgm t., Inc., No. WDQ-11-2824, 20 13 WL 1247815, at *10 (D. Md. Mar. 25, 20 13) (citation and internal quotation m arks om itted). 15 U.S.C. § 1692e(11) provides that a debt collector violates the section in part by failing to disclose “that the debt collector is attem pting to collect a debt and that any inform ation obtained will be used for that purpose.” From the voicem ails noted in the Com plaint, (Com pl. ¶¶ 12, 13), Defendants did not m eaningfully disclose their identity or the nature of the calls. Count III of Plaintiff’s Com plaint alleges violations of 15 U.S.C. § 1692d as Defendants “engag[ed] in conduct the national [sic] consequence of which was to harass, annoy, or abuse Plaintiff in connection with the collection of a debt.” (Com pl. ¶ 18.) Plaintiff alleges that Defendants called her at her place of em ploym ent, “occasionally scream ing at her in their efforts to extract paym ent.” (Id. at ¶ 9.) She further argues that “Defendants’ unauthorized com m unications with Plaintiff’s coworkers, calls to her place of em ploym ent, [and] calls after being notified she was represented by counsel” all constitute FDCPA violations. (Mot. at 7.) Based on these allegations, which are taken as true in light of Defendants’ failure to defend these claim s in any way, Plaintiff has established a claim for a violation of 15 U.S.C. § 1692d. In Count IV, Plaintiff argues that Defendants violated 15 U.S.C. §§ 1692c(a)(1) 8 and (a)(2) “by continuing to contact Plaintiff at her place of em ploym ent after being advised of the prohibition.” (Com pl. ¶ 19.) The violation of 15 U.S.C. § 1692c(a)(2) was raised in Count I of Plaintiff’s Com plaint, and is addressed above. As to the alleged violation of 15 U.S.C. 8 15 U.S.C. §§ 1692c(a)(1) states, Without the prior consent of the consumer given directly to the debt collector or the express perm ission of a court of com petent jurisdiction, a debt collector m ay not comm unicate with a consumer in connection with the collection of any debt— (1) at any unusual time or place or a time or place known or which should be known to be inconvenient to the consum er. In the absence of knowledge of circum stances to the contrary, a debt collector shall assum e that the convenient time for com m unicating with a consum er is after 8 o’clock antem eridian and before 9 o’clock postm eridian, local time at the consum er’s location .... 7 § 1692c(a)(1), Plaintiff has not stated a claim . This specific section of the statute prohibits a debt collector from com m unicating with a consum er in connection with the collection of any debt “at any unusual tim e or place or a tim e or place known or which should be known to be inconvenient to the consum er.” 15 U.S.C. § 1692c(a)(1). For exam ple, a debt collector shall assum e that the convenient tim e for com m unicating with a consum er is between 8 :0 0 a.m . and 9:0 0 p.m . Id. Plaintiff’s Com plaint contains no allegations regarding the inconvenient tim ing of Defendants’ collection calls.9 Finally, Count V alleges that Defendan ts violated 15 U.S.C. § 1692f(1) 10 “by attem pting to collect fees which were not expressly authorized by the agreem ent giving rise to the debt Plaintiff allegedly owed or otherwise perm itted by law.” (Com pl. ¶ 20 .) Specifically, Plaintiff alleges that Defendants added $ 50 .0 0 in “fees” to the principle am ount Plaintiff allegedly owed on the debt. (Id. at ¶ 14.) “Such fees were not authorized by the agreem ent giving rise to the alleged debt or otherwise perm itted by law.” (Id.) Accepting these allegations as true, Plaintiff has sufficiently stated a claim for a violation of 15 U.S.C. § 1692f(1). Plaintiff has also satisfied the procedural requirem ents for the entry of default judgm ent. See JTH Tax, Inc., 20 0 6 WL 1982762, at *1. ACA’s period for filing a responsive pleading to Plaintiff’s Com plaint expired on J une 26, 20 14. Defendant has yet to file a pleading or enter an appearance. The Clerk entered default on October 30 , 20 14 (ECF No. 10 ), and Plaintiff has satisfied the requirem ents for obtaining default judgm ent. Plaintiff’s Motion states that the case 9 Plaintiff’s Motion asserts that Count IV alleges violations of 15 U.S.C. § 1692c(a)(3), which prohibits a debt collector from com m unicating with a consumer in connection with the collection of any debt “at the consumer’s place of em ploym ent if the debt collector knows or has reason to know that the consum er’s em ployer prohibits the consum er from receiving such com m unication.” 15 U.S.C. § 1692c(a)(3). While Plaintiff’s Com plaint does support such allegation, (see Com pl. ¶¶ 8, 9), the Complaint does not allege such violation and thus is not properly considered here. 10 15 U.S.C. § 1692f(1) states, A debt collector m ay not use unfair or unconscionable m eans to collect or attem pt to collect any debt. Without lim iting the general application of the foregoing, the following conduct is a violation of this section: (1) The collection of any am ount (including any interest, fee, charge, or expense incidental to the principal obligation) unless such am ount is expressly authorized by the agreement creating the debt or perm itted by law. 8 is ripe for entry of default judgm ent as: (1) Defendants were sued on April 9, 20 14; ACA was served on J une 5, 20 14, and Winters was served on J une 17, 20 14 (see Mot. Ex. A); (2) the record reveals that Defendants failed to file a responsive pleading or otherwise appear; (3) the Clerk entered default against Defendants on October 30 , 20 14; (4) Defendants are neither m inors nor incom petent persons; (5) the Service Mem bers Civil Relief Act does not apply to Defendants; and (6) Defendants were served with the Request for Entry of Default (see id. at Ex. B). (Mot. at 2.) Plaintiff seeks actual dam ages, statutory dam ages, and attorney’s fees and costs. The FDCPA perm its recovery of each. See 15 U.S.C. § 1692k(a) (providing that a debt collector who fails to com ply with the statute is liable for actual dam ages, statutory dam ages up to $ 1,0 0 0 , and attorney’s fees and costs). With regards to Plaintiff’s claim for actual dam ages, “[t]he FDCPA’s actual dam ages provision also encom passes em otional distress dam ages.” Carter v. Country w ide Hom e Loans, Inc., No. 3:0 7CV651, 20 0 9 WL 10 10 851, at *4 (E.D. Va. Apr. 14, 20 0 9). However, Plaintiff has not presented any com petent proof of actual dam ages. She alleges that she “had becom e fearful of losing her job due to Defendants’ repeated and unauthorized calls to her place of em ploym ent” and she “suffered from nervousness and fear as a result of Defendants’ repeated calls.” (Mot. at 11.) She further alleges that “Defendants engaged in egregious conduct, the results of which would cause the reasonable person, including Plaintiff, to suffer from em otional distress.” (Id.) However, apart from m ere conclusory allegations, Plaintiff provides no evidence to support her request of $ 3,0 0 0 .0 0 in actual dam ages for em otional distress and thus no award will be given. See Coles v. Land’s Tow ing & Recovery , Inc., No. 3:10 -CV-0 0 0 25, 20 10 WL 530 0 892, at *3– 4 (E.D. Va. Dec. 22, 20 10 ) (in the absence of “com petent proof of actual dam ages,” no award given). However, the Court will award statutory dam ages as contem plated by 15 U.S.C. § 1692k(a). The statute perm its statutory dam ages up to $ 1,0 0 0 . 15 U.S.C. § 1692k(a)(2)(A); see 9 also Barnett v. Creditors Specialty Serv., Inc., No. 1:12cv30 3, 20 13 WL 16290 90 , at *2 (W.D.N.C. Apr. 16, 20 13) (“The statute provides for dam ages of $ 1,0 0 0 .0 0 per lawsuit, not per incident.”). In determ ining whether Plaintiff is entitled to a statutory dam ages award, the Court m ust consider “the frequency and persistence of noncom pliance by the debt collector, the nature of such noncom pliance, and the extent to which such noncom pliance was intentional.” 15 U.S.C. § 1692k(b)(1). Here, Plaintiff alleges that Defendants repeatedly called Plaintiff at her place of em ploym ent even after Plaintiff’s em ployer advised Defendants that such calls were prohibited. (Com pl. ¶¶ 8, 9). Defendants also continued to m ake direct calls to Plaintiff after being advised that she was represented by counsel. (Id. at ¶¶ 11, 12, 13.) Plaintiff specifically alleges two voicem ails that were left by Defendants’ agents– one on April 9, 20 13 and one on October 7, 20 13. (Id. at ¶¶ 12, 13.) Plaintiff further alleges that Defendants “occasionally scream [ed] at her in their efforts to extract paym ent.” (Id. at ¶ 9.) With these facts in m ind, the Court will award $ 1,0 0 0 in statutory dam ages. (ii) Attorneys’ Fees Plaintiffs who prevail in FDCPA actions are entitled to “the costs of the action, together with a reasonable attorney’s fee as determ ined by the court.” 15 U.S.C. § 1692k(a)(3). Attorney’s fees are m andatory under the FDCPA, but the am ount of the award is left to the district court’s discretion. Carroll v. W olpoff & Abram son, 53 F.3d 626, 628 (4th Cir. 1995). In determ ining reasonable attorneys’ fees, courts m ust first calculate the lodestar am ount. Grissom v. Mills Corp., 549 F.3d 313, 320 (4th Cir. 20 0 8). The lodestar am ount is “the product of reasonable hours tim es a reasonable rate.” Pennsy lvania v. Del. Valley Citizens’ Council for Clean Air, 478 U.S. 546, 565 (1986). The lodestar am ount is presum ptively reasonable, but m ay be adjusted based on the circum stances of the case. Id. The Suprem e Court cautions, however, that upward adjustm ents “are proper only in certain rare and exceptional cases, supported by both specific evidence on the record and detailed findings by the . . . courts.” 10 Id. (internal citation and quotation m arks om itted). In determ ining a reasonable fee, the Fourth Circuit also directs district courts to consider the twelve factors set forth in Johnson v. Georgia Highw ay Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974), and adopted by the Fourth Circuit in Barber v. Kim brell’s, Inc., 577 F.2d 216, 226 (4th Cir. 1978) and Allen v. United States, 60 6 F.2d 432, 435 (4th Cir. 1979). In re Abram s & Abram s, P.A., 60 5 F.3d 238 , 244 (4th Cir. 20 10 ). The twelve factors are: (1) the tim e and labor required in the case, (2) the novelty and difficulty of the questions presented, (3) the skill required to perform the necessary legal services, (4) the preclusion of other em ploym ent by the lawyer due to acceptance of the case, (5) the custom ary fee for sim ilar work, (6) the contingency of a fee, (7) the tim e pressures im posed in the case, (8 ) the award involved and the results obtained, (9) the experience, reputation, and ability of the lawyer, (10 ) the ‘undesirability’ of the case, (11) the nature and length of the professional relationship between the lawyer and the client, and (12) the fee awards m ade in sim ilar cases. Id. (citing Allen, 60 6 F.2d at 436 n.1). The Eastern District of Virginia requires parties requesting attorneys’ fees to subm it proper docum entation of the num ber of hours each attorney spent on the case. See EEOC v . Nutri/ Sy stem , Inc., 685 F. Supp. 568, 573 (E.D. Va. 1988) (“Proper docum entation is the key to ascertaining the num ber of hours reasonably spent on legal tasks. Fee claim ants m ust subm it docum entation that reflects reliable contem poraneous recordation of tim e spent on legal tasks that are described with reasonable particularity.”). A court can reduce or deny the requested award if the requesting party does not subm it the proper docum entation. Id. Plaintiff seeks $ 3,962.50 in attorney’s fees an d $ 59.95 in costs, for a total of $ 4,0 22.45. Plaintiff’s lawyer’s hourly rate is $ 30 0 and the paralegal/ staff rate is $ 50 . (See Mot. Ex. E.) Plaintiff’s lawyer spent 11.45 hours on the case, for a total of $ 3,435.0 0 .11 The paralegal spent 8.55 hours on the case, for a total of $ 427.50 . Plaintiff’s counsel subm its that the hourly rate is reasonable in light of the data collected from the 20 0 7 National Law J ournal billing survey, 11 Additionally, Exhibit E contains .33 hours at a rate of $ 10 0 for “Com m . from Atty. Am ador with Atty. Fisher re: filing of case.” The exhibit charges a total am ount of $ 10 0 for this work, and is included in the total calculation of $ 3,962.50 . 11 which revealed that the average m edian billing rate for a partner in the Richm ond, Virginia area is $ 30 0 .0 0 per hour. (See id. at Ex. C.) Additionally, Plaintiff’s counsel subm its that he has previously been awarded attorney’s fees based on a billing rate of $ 30 0 .0 0 per hour in cases very sim ilar to the instant case. (Mot. at 13) (citing cases). Finally, declarations were subm itted by both Attorney Fisher and Attorney Am ador in support of their request. (Id. at Exs. F, G.) Upon due consideration, the Court hereby GRANTS the Motion as to Plaintiff’s request for attorneys’ fees and costs. IV. CON CLU SION For the foregoing reasons, the Court GRANTS in part and DENIES in part the Motion. Specifically, the Court GRANTS the Motion as to ACA but DENIES the Motion as to Winters. Further, the Court DENIES an award of actual dam ages, but GRANTS a $ 1,0 0 0 statutory dam ages award. Finally, the Court GRANTS Plaintiff’s request for attorneys’ fees and costs. Let the Clerk send a copy of this Mem orandum Opinion to all counsel of record. An appropriate Order will issue. _______________________/s/________________ James R. Spencer Senior U. S. District Judge ENTERED this 10 th_ _ _ day of J une 20 15. 12
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