Summary
awarding fees of $3,875.00 in a FCCPA and Fair Debt Collection Practices Act case
Summary of this case from Simmons v. Washington Mutual Finance, Inc.Opinion
Case No. 04-60669-CIV-MARRA/SELTZER.
January 7, 2005
REPORT AND RECOMMENDATION
THIS CAUSE is before the Court on Plaintiff's Motion for Award of Attorney's Fees and Costs (DE 11) and was referred to the undersigned pursuant to 28 U.S.C. § 636. Having carefully reviewed the papers in support of and in opposition to said Motion and being otherwise sufficiently advised in the premises, the undersigned respectfully RECOMMENDS that Plaintiff's Motion be GRANTED IN PART and DENIED IN PART.
I. BACKGROUND
Plaintiff commenced this action on May 21, 2004, alleging that Defendant, a suspended California professional corporation, violated the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. (the "FDCPA"), and the Florida Consumer Collection Practices Act, Florida Statutes § 559.01 et seq. See Complaint (DE 1). After Plaintiff served the Complaint on Defendant, the parties engaged in "extensive" settlement negotiations, but they were unable to resolve this matter. See Plaintiff's Memorandum at 1 (DE 12). Defendant then served Plaintiff with an Offer of Judgment in the amount of $2,000, plus reasonable attorney's fees and costs to be determined by the Court; Plaintiff accepted Defendant's Offer of Judgment on August 6, 2004. See Notice of Filing Defendant's Offer of Judgment and Plaintiff's Acceptance of Offer of Judgment (DE 7). The District Court then entered a Judgment in Plaintiff's favor in accordance with the Offer of Judgment. See Judgment (DE 8).
Plaintiff has now moved for an award of $5,265 in attorney's fees (16.2 hours of attorney time at $325 per hour) and $233.21 in costs (filing fee, $150; service of process fee, $65; photocopies, $15.25; and postage, $2.96). See Plaintiff's Memorandum at 2 (DE 12); Exhibit A to Declaration of Robert W. Murphy in Support of Plaintiff's Motion (DE 13); Reply at 2, 5 (DE 17). In response, Defendant argues that the attorney's rate is excessive and should be reduced to $200 per hour. See Response at 2-4 (DE 15). Defendant further argues that Plaintiff should not be entitled to recover attorney's fees incurred in connection with his fee application because Defendant agreed to pay Plaintiff his reasonable attorney's fees and costs as part of the Offer of Judgment. See id. at 2 (DE 15). As such, Defendant asserts that Plaintiff should be awarded only $2,500 in attorney's fees (12.5 hours for work performed pre-Judgment at $200 per hour). See id. at 4 (DE 15).
In his Motion, Plaintiff requested $4,062.50 in attorney's fees for work performed through the date of the Judgment (12.5 hours at $325 per hour). In his August 27, 2004 Reply in support of his Motion, Plaintiff requested an additional $1,202.50 in attorney's fees in connection with his fee application (3.7 hours at $325 per hour).
Defendant does not challenge Plaintiff's request for costs.
II. DISCUSSION
Under the FDCPA, a prevailing plaintiff is entitled to recover "the costs of the action, together with a reasonable attorney's fee as determined by the court." 15 U.S.C. § 1692k(a)(3). Defendant has not challenged Plaintiff's entitlement to attorney's fees and costs, but it does challenge the amount sought.
A. Attorney's Fees
Courts awarding attorney's fees pursuant to 15 U.S.C. § 1692k(a)(3) apply the "lodestar" method. See, e.g., Savino v. Computer Credit, Inc., 164 F.3d 81, 87-88 (2d Cir. 1998);Lee v. Thomas Thomas, 109 F.3d 302, 306 n. 7 (6th Cir. 1997); Thorpe v. Collection Info. Bureau, Inc., 963 F. Supp. 1172, 1174 (S.D. Fla. 1996) (Marcus, J.); Martinez v. Law Offices of David J. Stern, P.A. (In re Martinez), 266 B.R. 523, 541-43 (Bankr. S.D. Fla. 2001). In Norman v. Housing Authority of the City of Montgomery, 836 F.2d 1292 (11th Cir. 1988), the Eleventh Circuit explained the lodestar method for calculating a reasonable attorney's fee. First, a court must ascertain the number of hours an attorney reasonably expended on the litigation, and then it must determine a reasonable hourly rate for that attorney. The product of the reasonable hourly rate and the reasonable number of hours expended is referred to as the "lodestar amount." Id. at 1299. The lodestar amount may then be adjusted upward or downward to reach a more appropriate attorney's fee. Id. at 1302.
1. Reasonable Hourly Rate
The burden rests with the moving party to establish that the hourly rate claimed is reasonable. Norman, 836 F.2d at 1299. A "reasonable hourly rate" is "the prevailing market rate in the relevant legal community for similar services by lawyers of reasonably comparable skills, experience, and reputation." Id. The Norman court discussed the showing that is necessary for the movant to meet this burden:
Satisfactory evidence at a minimum is more than the affidavit of the attorney performing the work. . . . [S]atisfactory evidence necessarily must speak to rates actually billed and paid in similar lawsuits. Testimony that a given fee is reasonable is therefore unsatisfactory evidence of market rate. Evidence of rates may be adduced through direct evidence of charges by lawyers under similar circumstances or by opinion evidence.
Id. (citations omitted).
In assessing the reasonableness of the hourly rates claimed, a court may take into account the pertinent factors set forth inJohnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974). These factors include the skill and experience of the attorney, the hourly rate normally charged by the attorney, and the rates billed by other attorneys in similar actions. Additionally, a court may rely on its own knowledge, experience, and expertise in determining a reasonable hourly rate. Norman, 836 F.2d at 1292; Avirgan v. Hull, 705 F. Supp. 1544, 1549 (S.D. Fla. 1989).
Here, Plaintiff argues that $325 is a reasonable hourly rate for his attorney, Robert Murphy, Esq. According to attorney Murphy's affidavit, he has been practicing law since 1987 and is admitted to practice before the courts of Florida and Georgia, the United States District Courts for the Southern and Middle Districts of Florida, and the United States Court of Appeals for the Eleventh Circuit. See Murphy Declaration ¶¶ 1, 3 (DE 13). Attorney Murphy avers that he is a solo practitioner who has focused on representing individuals in consumer matters since 1993. See id. ¶¶ 3-4 (DE 13). He further avers that he has litigated over 100 state and federal fair debt collection practices cases, including class actions. See Supplemental Murphy Declaration ¶ 3 (DE 18). Attorney Murphy states that his regular hourly rate is $325. See Murphy Declaration ¶ 10 (DE 13). In his Reply, however, Plaintiff acknowledges that in a recent case pending before this Court, styled Greg Murray v. Butler Hosch, P.A., No. 03-60109-CIV-GRAHAM/GARBER, United States Magistrate Judge Barry Garber determined that a reasonable hourly rate for attorney Murphy's services was $250. See Reply at 5 Exhibit A (DE 17).
Plaintiff also has submitted a Declaration from attorney Manuel A. Garcia-Linares (attached to attorney Murphy's Supplemental Declaration) in support of his contention that an hourly rate of $325 is reasonable. In his Declaration, attorney Garcia-Linares avers that the "hourly rate in [this] Court for an attorney with . . . Murphy's experience would be in the range of $250 to $350 per hour. Therefore, $325 per hour would be a reasonable and appropriate hourly rate for [a]ttorney Murphy in this proceeding." Garcia-Linares Declaration ¶ 2 (attached to Supplemental Murphy Declaration (DE 18)). Although attorney Garcia-Linares's Declaration states that his resume (laying out his background and experience) is attached thereto, nothing is attached to the Declaration. Moreover, the Declaration does not indicate how attorney Garcia-Linares reached his conclusions. The undersigned, therefore, cannot accord great weight to the Declaration. See Norman, 836 F.2d at 1299 ("Evidence of rates may be adduced through direct evidence of charges by lawyers under similar circumstances or by opinion evidence. The weight to be given to opinion evidence of course will be affected by the detail contained in the testimony on matters such as similarity of skill, reputation, experience, similarity of case and client, and breadth of the sample on which the expert has knowledge.").
Defendant responds that a reasonable hourly rate for attorney Murphy is $200 because the legal issues raised in this case were neither novel nor difficult. See Response at 3 (DE 15). Defendant also directs the Court to two FDCPA decisions that applied hourly rates of $200 and $195, respectively. See id. at 3 (DE 15) (citing Martinez and Thorpe). Finally, Defendant cites a recent case before this Court in which hourly rates of $300 and $325 were rejected as "excessive." See id. at 3 (DE 15) (citing Neumont v. Monroe County, 220 F.R.D. 380 (S.D. Fla. 2004)).
Defendant's arguments in favor of a $200 hourly rate are unpersuasive. It may be true that the legal issues raised in this case were neither novel nor difficult, as Defendant argues in urging the Court to apply a $200 hourly rate; however, that is only one factor for the Court to consider in determining a reasonable hourly rate. Other factors, including attorney Murphy's customary fee, the results obtained, and the experience and ability of attorney Murphy all militate in favor of an hourly rate greater than $200. Moreover, the cases cited by Defendant are of marginal import, at best. Thorpe was decided more than seven years ago, and Martinez was decided over three years ago; each therefore sheds little light on the reasonable hourly rates for counsel of attorney Murphy's skill and experience in the current legal market. Furthermore, Neumont (admittedly) was not an FDCPA case, and the award of attorneys' fees by the Magistrate Judge in that case was reversed on review by the District Court. See Neumont v. Monroe County, No. 99-10054-CIV-PAINE, 2004 WL 2850028, at *2 (S.D. Fla. June 3, 2004). Nevertheless, the undersigned concurs with Defendant that an award of $325 per hour is excessive.
The Court is considered an expert on the reasonableness of hourly rates and may apply "its own knowledge and experience concerning reasonable and proper fees and may form an independent judgment either with or without the aid of witnesses as to value." Norman, 836 F.2d at 1303. After having considered the factors enumerated in Johnson and based on the undersigned's familiarity with legal fees in this jurisdiction, the undersigned agrees with Magistrate Judge Garber's determination in Murray less than six weeks ago that a reasonable hourly rate for attorney Murphy's services is $250.
2. Reasonable Number of Hours Expended
Defendant does not challenge the 12.5 hours expended by attorney Murphy prior to the Court having entered the Judgment. In addition, the undersigned has reviewed attorney Murphy's billing records concerning those 12.5 hours and finds that they are reasonable and not "excessive, redundant or otherwise unnecessary hours." Norman, 836 F.2d at 1301. Accordingly, Plaintiff is entitled to recover attorney's fees for those 12.5 hours.
The 12.5 hours include time spent by attorney Murphy communicating with his client, performing legal research, drafting the Complaint, overseeing service of process and the return of service, communicating with opposing counsel regarding settlement and other issues, reviewing the Offer of Judgment, and preparing and filing Plaintiff's acceptance of the Offer of Judgment. See Murphy Declaration, Exhibit A (DE 13).
Defendant does challenge the 3.7 hours expended by attorney Murphy litigating the attorney's fees application. Defendant argues that because it agreed to pay Plaintiff reasonable attorney's fees as part of its Offer of Judgment, it would be unreasonable to award Plaintiff attorney's fees incurred in proving Plaintiff's entitlement to fees. See Response at 2 (DE 15). To the extent that Plaintiff seeks fees in proving his entitlement to fees, the undersigned would agree with Defendant. However, most of Plaintiff's fee application is devoted not to counsel's entitlement to fees, but to the reasonableness of the amount. Accordingly, the undersigned will deduct .7 hours from the 3.7 hours attorney Murphy expended litigating Plaintiff's attorney's fees motion. The remaining 3 hours are compensable; Defendant cannot argue that those hours were not "necessary," as Defendant in fact challenged the reasonableness of Plaintiff's fee request.
Defendant does not appear to dispute that a party generally may recover fees incurred in litigating a fee request. See Villano v. City of Boynton Beach, 254 F.3d 1302, 1309-10 (11th Cir. 2001) ("A prevailing party is entitled to reasonable compensation for litigating a [fee] award.").
3. Lodestar Amount
Multiplying the number of hours reasonably expended (15.5) by attorney Murphy's reasonable hourly rate ($250) results in a lodestar amount of $3,875. Neither party has requested an adjustment to the lodestar amount, and the undersigned finds that no adjustment (either upward or downward) to that amount is warranted.
B. Costs
In addition to attorney's fees, Plaintiff seeks to recover costs of $233.21 incurred in this action. In particular, Plaintiff seeks reimbursement for the following costs: the filing fee ($150); the service of process fee ($65); photocopies ($15.25); and postage ($2.96). See Plaintiff's Memorandum at 2 (DE 12); Exhibit A to Murphy Declaration (DE 13). Defendant has not challenged Plaintiff's request for costs.
The FDCPA authorizes an award of "the costs of the action" to a prevailing plaintiff. See 15 U.S.C. § 1692k(a)(3). However, the statute does not identify the specific costs to which a plaintiff may be entitled. Plaintiff cites several cases for the proposition that certain out-of-pocket expenses — including travel costs, photocopies, lodging, postage and telephone charges — are recoverable. See Plaintiff's Memorandum at 7 (DE 12). But each of those cited cases involved an award of costs under 42 U.S.C. § 1988, the civil rights fee-shifting statute. Plaintiff has failed to provide the Court with any authority to justify in an FDCPA case an award of costs beyond those enumerated in 28 U.S.C. § 1920. The undersigned, therefore, recommends that the District Court disallow Plaintiff's request for postage and photocopy costs. Deducting the sum of these expenses ($18.21) from the total claimed ($233.21) results in a cost award of $215.
28 U.S.C. § 1920 authorizes recovery of the following costs: "(1) Fees of the clerk and marshal; (2) Fees of the court reporter for all or any part of the stenographic transcript necessarily obtained for use in the case; (3) Fees and disbursements for printing and witnesses; (4) Fees for exemplification and copies of papers necessarily obtained for use in the case; (5) Docket fees under section 1923 of this title; (6) Compensation of court appointed experts, compensation of interpreters, and salaries, fees, expenses, and costs of special interpretation services under section 1828 of this title."
Although photocopy charges may properly be taxed as costs under § 1920 if they are "necessarily obtained for use in the case," 28 U.S.C. § 1920(4), Plaintiff here has failed to identify the documents copied, the number of copies, and the rate charged; he has also failed to explain the manner in which such copies were used. Absent such information, these charges should be disallowed.
This amount is composed of the filing fee ($150) and the process server fee ($65).
III. RECOMMENDATION
Based on the foregoing, the undersigned respectfully RECOMMENDS that Plaintiff's Motion for Award of Attorney's Fees and Costs (DE 11) be GRANTED IN PART and DENIED IN PART and that Plaintiff be awarded $3,875 in attorneys' fees and $215 in costs, for a total award of $4,090.
The parties will have ten (10) days from the date of being served with a copy of this Report and Recommendation within which to file written objections, if any, with the Honorable Kenneth A. Marra, United States District Judge. Failure to file objections timely shall bar the parties from a de novo determination by the District Judge of an issue covered in the report and shall bar the parties from attacking on appeal factual findings accepted or adopted by the District Court except upon grounds of plain error or manifest injustice. See 28 U.S.C. § 636(b)(1);Thomas v. Arn, 474 U.S. 140, 149 (1985); Henley v. Johnson, 885 F.2d 790, 794 (11th Cir. 1989).