Summary
finding a .25 billing increment for minor tasks unreasonable
Summary of this case from Fox v. ViceOpinion
Civil Action No. 99-3749 Section "F" (3)
May 15, 2001
ORDER AND REASONS
Plaintiff, Matthew L. Hagan, Jr., seeks an award of $55,000.00 in attorney's fees and $1,617.83 in costs pursuant to § 1692k (a)(3) of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692, et seq.
Hagan's motion to set fees and costs requested $1,511.72 in costs. In connection with a court order to substantiate the cost request, plaintiff's counsel submitted additional cost items totaling $106.11, thus raising the amount originally requested in his motion to $1,617.83.
Plaintiff's motion to set fees and costs is before the undersigned Magistrate Judge pursuant to the consent of the parties to proceed under 28 U.S.C. § 636 (c).
I. BACKGROUND
Hagan brought this lawsuit against MRS Associates, Inc., four employees of MRS, and the Illinois National Insurance Company, alleging that they engaged in various abusive, deceptive, and unfair trade practices in violation of the FDCPA and Louisiana state laws in connection with their efforts to collect a $1,402.96 credit card debt allegedly owed by Hagan to Wachovia Bank. Hagan sought statutory and actual damages, attorney's fees, and costs. After six months of discovery, Hagan settled his claims, excluding attorney's fees and costs, for $6,000.00.Hagan bases his request for attorney's fees in the amount of $55,000.00 on 195.50 hours at an hourly rate of $240.00 ($46,920.00), plus an unexplained enhancement of approximately $8,000.00. For the reasons that follow, the court finds that the number of hours and the hourly rate are excessive and that the fee must be reduced to achieve a reasonable fee award. After various deductions discussed below, the court fixes the fee award in the amount of $19,500.00. The court further finds that Hagan is entitled to an award of $1,466.39 for litigation costs.
At one point in his brief, plaintiff's counsel argues for an hourly rate of $300.00. See Memorandum in Support of Motion to Set Fee and Cost at 10. In his "Detailed Fees and Costs" record, attached to his motion, plaintiff's counsel applies what he describes as his current non-contingency rate of $240.00 per hour.
II. ANALYSIS
When a consumer brings a successful FDCPA lawsuit, the defendant debt collector is liable for "the costs of the action, together with a reasonable attorney's fee" in an amount to be fixed in the discretion of the court. 15 U.S.C. § 1692k(a)(3). The defendants do not contest that Hagan is a prevailing party by virtue of the $6,000.00 settlement in his favor. See Farrar v. Hobby, 506 U.S. 103, 111, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992) (a plaintiff may prevail through settlement of the merits of his claims where the relief secured directly benefits him at the time of settlement). Accordingly, Hagan is entitled to an award of reasonable attorney's fees and costs pursuant to § 1692k(a)(3).
The calculation of reasonable fees and costs under § 1692k(a)(3) is governed by the facts and circumstances of the underlying litigation viewed in light of the twelve factors set forth in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974), overruled on other grounds, Blanchard v. Bergeron, 489 U.S. 87, 109 S.Ct. 939, 103 L.Ed.2d 67 (1989). As stated in Von Clark v. Butler, 916 F.2d 255 (5th Cir. 1990)
The Johnson factors are: (1) the time and labor required; (2) the novelty and difficulty of the issues; (3) the skill requisite to perform the legal services properly; (4) the preclusion of other employment by the attorney due to acceptance of the case; (5) the customary fee in the community; (6) whether the fee is fixed or contingent; (7) the time limitations imposed by the client or the circumstances; (8) the amount of time involved and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the undesirability of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases. Johnson, 488 F.2d at 717-19.
The trial court should consider the twelve Johnson factors in light of the following framework: it should (1) ascertain the nature and extent of the services supplied by the attorney; (2) determine the value of the services according to the customary fee and the quality of the work; and (3) adjust the compensation on the basis of the other Johnson factors that may be of significance in the petitioner's case. Copper Liquor. Inc. v. Adolph Coors Co., 684 F.2d 1087, 1092 (5th Cir. 1982) (Copper Liquor III), modified on other grounds, 701 F.2d 542 (5th Cir. 1983) (en banc), overruled on other grounds, International Woodworkers of America. AFL-CIO v. Champion Int'l Corp., 790 F.2d 1174, 1175 (5th Cir. 1986). The product of the first two steps is the "lodestar." Nisby v. Commissioners Court of Jefferson County, 798 F.2d 134, 136 (5th Cir. 1986). After calculating the lodestar amount, the district court must then apply the remaining Johnson factors to determine if the lodestar should be adjusted. Id. at 137. The district court must be careful not to "double count" a Johnson factor already considered in calculating the lodestar when it determines the necessary adjustments under part three of the "framework." See Sims v. Jefferson Downs Racing Assn., 778 F.2d 1068, 1084 (5th Cir. 1985). The district court
however, should pay "special heed" to Johnson criteria numbers "(1) the time and labor involved, (5) the customary fee, (8) the amount involved and the results obtained, and (9) the experience, reputation and ability of counsel." Copper Liquor III, 684 F.2d at 1092. To avoid the risk of remand the district court should explain with a reasonable degree of specificity the findings and reasons upon which the award is based, including an indication of how each of the Johnson factors was applied.
Id. at 258.
A. ATTORNEY'S FEES
1. Reasonable hourly rate
A reasonable hourly rate for attorney's fees awarded under § 1692k(a)(3) is the prevailing market rate for attorneys of comparable experience employed in cases of similar complexity. See Blum v. Stenson, 465 U.S. 886, 895-96 n. 11, 104 S.Ct. 1541, 1547 n. 11, 79 L.Ed.2d 891 (1984); Scham v. District Courts Trying Criminal Cases, 148 F.3d 554, 558 (5th Cir. 1998). The plaintiff bears the burden of producing satisfactory evidence that the requested rate is reasonable. Id.; Hensley v. Eckerhart, 461 U.S. 424, 437; 103 S.Ct. 1933, 1941, 76 L.Ed.2d 40 (1983); Von Clark, 916 F.2d at 259. Satisfactory evidence should include evidence offered in declarations or opinion evidence of rates actually billed and paid by plaintiff's counsel, rates charged by lawyers in similar lawsuits, and the relative skill of the attorney involved.Blum, 465 U.S. at 896 n. 11, 104 S.Ct. at 1547 n. 11; Norman v. Housing Auth. of City of Montgomery, 836 F.2d 1292, 1299 (11th Cir. 1988)
Hensley involved an award of attorney's fees pursuant to 42 U.S.C. § 1988, but the Court specifically stated that, "The standards set forth in this opinion are generally applicable in all cases in which Congress has authorized an award of fees to a prevailing party.'" Id., 461 U.S. at 433, 103 S.Ct. at 1939.
Hagan seeks an hourly rate of $240.00. Hagan submitted no evidence that his attorney has ever been paid the hourly rate of $240.00, and no evidence of his attorney's customary hourly rate. Hagan submitted no evidence of his attorney's experience in FDCPA litigation, his reputation, or skill. While he states that his attorney obtained the rate of $300.00 per hour in a recent case, he failed to identify the case.See Plaintiff's Memorandum In Support Of Motion To Set Fees and Cost, at 7.
Regarding the prevailing market rate in the community for attorneys of comparable skill, reputation, and experience, Hagan argues, again without any evidence or case authority, that "(a] fee rate in applicant's bracket will range from $500.00 per hour to $300.00 depending upon the reputation of the attorney and the law firm involved." Id. at 6. He explains that "the cases applicant knows about do not have as the attorney for the consumer an attorney that has the years and experience that applicant has of 10 years with the Federal Trade Commission and approximately 30 years in private practice so there is no customary fee in applicant's bracket for a consumer law case." Id.
Plaintiff's counsel neglected to mention that in an FDCPA case,McDaniel v. Asset Retrieval of Florida, Inc., Civ. A. No. 95-0589, 1996 WL 7001 (E.D. La. Jan. 5, 1996), Judge Clement of this district awarded Hagan's counsel an hourly rate of $200.00 on a default judgment.
Defendants challenge the $240.00 hourly rate as lacking any evidentiary or precedential support. Defense counsel has submitted a declaration that he has handled more than seventy FDCPA cases within the past five years and that during that time period, he has not encountered a $240.00 hourly rate charged by any plaintiff's attorney. Defendants point out that the contract between Hagan and his attorney sets forth an hourly rate of $200. Finally, defendants argue, citing two FDCPA cases awarding hourly rates of $95 and $100 an hour, that the hourly rate of $240.00 is out of line with other awards reported in FDCPA cases.
The Supreme Court has held that the contract between a plaintiff and his attorney is not dispositive of a reasonable hourly rate. See Blanchard v. Bergeron, 489 U.S. at 96, 109 S.Ct. at 946; Louisiana Power Light Co. v. Kellstrom, 50 F.3d 319, 328 (5th Cir. 1995), cert. denied, 516 U.S. 862, 116 S.Ct. 173, 133 L.Ed.2d 113 (1995).
See Lee v. Thomas Thomas, 109 F.3d 302 (6th Cir. 1997) ($100 per hour); and Donahue v. Lanocha, 781 F. Supp. 188 (W.D.N.y. 1991) ($95 per hour).
Based on (1) the Clerk of Court's records reflecting counsel's experience in FDCPA litigation in this district, (2) Hagan's fee agreement, (3) defense counsel's affidavit establishing his hourly rate of $155.00, (4) defense counsel's affidavit that he has never encountered any plaintiff's attorney who charges as much as $240.00, (5) the hourly rate of $200.00 awarded to plaintiff's counsel by Judge Clement inMcDaniel, 1996 WL 7001 (E.D. La. Jan. 5, 1996), (6) the court's experience and knowledge of the prevailing market rate for attorneys of comparable experience to plaintiff's counsel, and (7) the lack of evidentiary support for the requested rate of $240.00 per hour, the court finds that the rate of $200.00 per hour is reasonable and appropriate in this case.
Hagan's motion for fees states that his attorney has practiced law for forty years, but Hagan did not provide the court with any evidence of his attorney's experience. The court examined the records of the United States Clerk of Court for the Eastern District of Louisiana in an attempt to determine the extent of plaintiff's counsel's experience in this federal court, the court found that within the last five years, plaintiff's counsel has filed sixty lawsuits in this district, including twenty-six lawsuits alleging violations of the FDCPA as well as numerous other consumer protection lawsuits. The court takes judicial notice of these facts and finds that amount of federal practice and FDCPA experience to be significant. The court did not examine court records in this district beyond the past five years, and it has not examined any other district's records.
The hourly fee determined by the court must have an evidentiary basis. "(T]he district court may not simply rely on its own experience in the relevant legal market to set a reasonable hourly billing rate."League of United Latin Am. Citizens #455 (LULAC) v. Roscoe Indep. Sch. Dist., 119 F.3d 1228, 1234 (5th Cir. 1997). The court should base its hourly rate award on what the evidence shows the market commands for analogous litigation. However, where the evidence regarding the prevailing market rate is inadequate, the court may look to its own knowledge and experience in establishing a reasonable rate. Avirgan v. Hull, 705 F. Supp. 1544, 1549 (S.D. Fla. 1989) (citing Norman, 836 F.2d at 1303), aff'd, 932 F.2d 1572 (11th Cir. 1991)); Campbell v. Green, 112 F.2d 143, 144 (5th Cir. 1940).
The rate of $200.00 per hour is in line with rates awarded in other recent FDCPA cases. See McDaniel, 1996 WL at *1 (awarding $200.00 per hour to plaintiff's counsel herein); Savino v. Computer Credit, Inc., 71 F. Supp.2d 173, 177 (E.D. N Y 1999) (reasonable rate is $200.00 an hour); Withers v. H.R. Eveland, 997 F. Supp. 738, 739 (E.D. Va. 1998) ($200.00 per hour is within the prevailing market range for attorneys with significant experience in the field of consumer protection litigation); Hensley v. Berks Credit Collections, Inc., No. Civ. 97-790, 1997 WL 725367 *6 (E.D. Pa. Nov. 18, 1997) (awarding $200.00 an hour, despite the court's opinion that the rate is too high for work performed on relatively simple claims, because defense counsel did not challenge the rate); Thorpe v. Collection Information Bureau, Inc., 963 F. Supp. 1172, 1173-74 (S.D. Fla. 1996) (finding $195.00 an hour reasonable).
2. Reasonableness of hours worked
The next step in the lodestar analysis is determining the amount of "reasonable hours." The plaintiff has the burden of substantiating the hours expended with sufficient clarity to enable the court to determine whether the claimed hours were in fact reasonable. See Hensley, 461 U.S. at 437; 103 S.Ct. at 1941;Watkins v. Fordice, 7 F.3d 453, 457 (5th Cir. 1993). "Where the documentation of hours is inadequate, the district court may reduce the award accordingly." Hensley, 461 U.S. at 433, 103 S.Ct. at 1939.In addition, fee applicants are required to use "billing judgment."Id, 461 U.s. at 437, 103 S.Ct. at 1941; Copeland v. Marshall, 641 F.2d 880 (D.C. Cir. 1980) ("Hours that are not properly billed to one's client also are not properly billed to one's adversary pursuant to statutory authority"). Where billing judgment is lacking, the court must exclude from the lodestar calculation the hours that were not reasonably expended, such as hours attributable to overstaffing, hours that appear excessive in light of the experience and skill of the lawyers, and hours that are redundant or otherwise unnecessary. See Hensley, 461 U.S. at 434, 103 S.Ct. at 1939-40.
Defendants dispute the reasonableness of 195.5 hours given the simplicity of the issues and plaintiff's counsel's expertise. Defendants argue that the hours are excessive, for the additional reasons that plaintiff's counsel over-litigated the case and billed in one quarter-hour increments instead of one tenth-hour increments. Defendants also argue that the hours should be reduced due to plaintiff's counsel having lumped tasks together, thereby making it is impossible to determine the amount of time spent on a specific task.
In light of these objections and in accordance with the standards set forth in Hensley, this court has undertaken a review of the time records submitted by plaintiff's counsel to exclude time not adequately documented, "excessive, redundant, or otherwise unnecessary" hours, and time expenditures that are unreasonable in relation to the success achieved. Hensley, 461 U.S. at 433-45, 103 S.Ct. at 1939-41.
a. Inadequate documentation
Initial review of the adequacy of the documentation of time reveals, consistent with defense counsel's objection, that plaintiff's counsel made only one time entry for each day he worked on the case. Thus, in several instances where he performed unrelated tasks on the same day, he did not make separate time entries, but he instead assigned a single block of time to multiple tasks. For example, counsel assigned 3.5 hours for the following tasks on July 6, 2000: "Prepare for discovery conference with defense attorney; research issues; go over interrogatories, defense did not answer completely, and request for production; talk to client to set up defense cited; talk to client to set up appointment; research cases defense cited; talk to court re discovery, schedule of motions." On July 18, 2000, he recorded 1.5 hours for the following tasks: "Go over defense's second response; call attorney in California to see if he has filed suit; review facts with paralegal." And again, on July 26, 2000, he recorded 1.5 hours for: "Telephone call with client — he will get bank statement, lease pay record; review file for next response; call Kinsey; call New Jersey attorney; review fax from California on case against MRS; set date for settlement conference." This discouraged practice of lumping unrelated tasks makes it difficult for the court to determine whether a reasonable amount of time was allocated to each task.
Another problem with the adequacy of the records is that the time entries are vague and do not contain sufficient explanation to allow the court a meaningful review of the work performed. Most of the time plaintiff's counsel spent on legal research, which the court calculates as 40 hours, or approximately twenty percent of the total 195.5 hours recorded, simply states "legal research" without stating the subject of the research.
The court calculated 40 hours based on the following time entries:
10/6/99 .25 1/26/00 1.00 3/27/00 .50 7/10/00 1.50 10/14/99 .25 2/4/00 .50 3/28/00 .75 7/12/00 1.00 10/15/99 1.25 2/7/00 .75 3/29/00 .75 7/13/00 .25 11/1/99 .25 2/8/00 1.50 5/1/00 .25 8/15/00 .50 12/10/00 5.00 2/9/00 .50 6/22/00 .25 9/1/00 1.00 12/13/99 .75 3/10/00 1.00 6/23/00 2.50 9/5/00 2.00 12/14/99 1.75 3/21/00 3.50 6/26/00 2.50 9/25/00 1.00 12/20/99 .25 3/24/00 1.00 6/30/00 3.25 11/10/00 2.50
These forty hours do not include the following entries that included time for legal research. The court chooses to review the following entries as time spent on discovery (entries for 6/20/00-9/27/00) or settlement (entry for 11/20/00):
6/20/00 4.25 6/21/00 5.00 7/6/00 3.50 9/27/00 2.25 11/20/00 3.75
This was a judgment call necessitated by plaintiff's counsel having lumped together multiple tasks.
As alluded to, many of the vague "legal research" entries "4 have the additional problem of being lumped together with other tasks. For example, the December 10, 1999, entry indicates five hours spent on both "legal research" and preparation of the complaint. Consequently, the court cannot discern the amount of time spent on each separate task.
In addition, plaintiff's counsel did not record less than fifteen minutes for any work he performed in this case. Even de minirnus tasks, such as making telephone calls which were unanswered, and reviewing faxes, e-mail, and one-page court orders, were billed a full quarter-hour. For example, on November 15, 1999, counsel billed fifteen minutes for reviewing an e-mail and making an unanswered telephone call; on May 19, 2000, counsel billed fifteen minutes for calling defense counsel and leaving a message; on July 11, 2000, counsel billed fifteen minutes to review a six-sentence court discovery order; on August 14, 2000 counsel billed fifteen minutes to telephone the court and find out whether oral argument would be held on a motion; and on January 4, 2001, counsel billed fifteen minutes to review a one-page court scheduling order.
Law firms routinely bill in standard time increments, such as one-tenth of an hour (six minutes); one-sixth of an hour (ten minutes); or even one-quarter of an hour (fifteen minutes) as done by plaintiff's counsel.See Causeway Medical Suite v. Foster, No. Civ. A. 99-509, 2000 WL 533515 at *2 (E.D. La. May 2, 2000) Billing in quarter-hour increments with an hourly rate of $200.00, gives each task, no matter how small and regardless of the actual time spent, a minimum $50.00 charge. Hagan did not submit any evidence to establish that his attorney's regular practice is to bill non-contingency clients in quarter-hour increments.
Hagan's contract with his counsel does not address billing increments.
The billing records in this case, reflecting many quarter-hour time entries for the briefest of tasks, undermine the reasonableness of at least a portion of the billings. See Edwards v. National Business Factors, Inc., 897 F. Supp. 458, 461 (D. Nev. 1995) (finding that "no attorney" needs .25 hours to review a one-page order). Hagan has failed to provide the court with any explanation as to whether his attorney rounded-up his time (which generally appears to be the case), or exercised billing judgment to round-down his time. See Cowan v. Ernest Cordelia, P.C., No. 98 Civ. 5548 (JGK), 2001 WL 30501 at *8, (S.D.N.Y. Jan. 12, 2001); Sandoval v. Apfel, 86 F. Supp.2d 601, 615 (N.D. Tex. 2000); George v. GTE Directories Corp., 114 F. Supp.2d 1281, 1292-93 (M.D. Fla. 2000); Ramsey v. State of Alabama Public Service Comm'n, No. CIV.A. 96-T-275-N, 2000 WL 426187 at *5 (M.D. Ala. Apr. 13, 2000);Blackman v. District of Columbia, 59 F. Supp.2d 37, 44 (D.D.C. 1999);Glover v. Heart of America Management Co., No. Civ. A. 98-2125-KHV, 1999 WL 450895 at *7 (D.Kan. May 5, 1999); Zucker v. Occidental Petroleum Corp., 968 F. Supp. 1396, 1403 (C.D. Cal. 1997), aff'd 192 F.3d 1323 (9th Cir. 1999), cert. denied 529 U.S. 1066, 120 S.Ct. 1671, 146 L.Ed.2d 481 (2000); Hensley v. Berks Credit Collections, Inc., No. Civ. 97-790, 1997 WL 725367 at *5 (E.D. Pa. Nov. 18, 1997); Fox Valley Laborers Fringe Benefit Funds v. Pride of the Fox Masonry, No. 94C4289, 1996 WL 263229 at *1 (N.D.Ill. May 14, 1996), aff'd, 140 F.3d 661 (7th Cir. 1998); Payne v. Sullivan, 813 F. Supp. 811, 813 (N.D. Ga. 1992) (cases rejecting quarter-hour billing increments as excessive).
Litigants "take their chances" when submitting inadequately documented fee applications which provide little information from which to determine the reasonableness of the hours expended on tasks vaguely described or lumped together. Louisiana Power Light Co., 50 F.3d at 327; Arevalo v. Nat'l Credit Sys., Inc., No. 97 C 6687, 1998 WL 456541 at *3 n. 4 (N.D. Ill. July 31, 1998) (citing Vitug v. Multistate Tax Comm'n, 883 F. Supp. 215, 224 (N.D. Ill. 1995)) (court reduced hours spent on drafting the complaint, and held that the fee applicant "bears the burden of any inaccuracy in (the court's] reduction" because of lumping multiple tasks). When the documentation provided is insufficient, the court may reduce the number of hours awarded or deny the fee application in its entirety. Hensley, 461 U.S. at 433, 103 S.Ct. at 1939; Louisiana Power Light Co., 50 F.3d at 324, 326; Watkins, 7 F.3d at 457; See also LULAC, 119 F.3d at 1233 (disallowing fees for "research and review of cases" because entry was impermissibly vague); Walker v. U.S. Dept. of HUD, 99 F.3d 761, 773 (5th Cir. 1996) (rejecting in entirety paralegal's fee request as "woefully inadequate" where it contained "terse listings" and lumped all activities in one day together); Leroy v. City of Houston II, 906 F.2d 1068, 1080 (5th Cir. 1990) (striking hours as "not illuminating as to the subject matter" or "vague as to precisely what was done");Leroy v. City of Houston I, 831 F.2d 576, 585-86 (5th Cir. 1987) (reversing district court where court accepted all hours from records that were scanty, completely missing, or lacking in explanatory detail).
The court finds that a ten percent reduction in the total hours recorded, or a reduction by 19.50 hours, is an appropriate reduction to account for the inadequate records. Louisiana Power Light Co., 50 F.3d at 326 (ten percent reduction for inadequate documentation due to vagueness); H.J. Inc. v. Flygt Corp., 925 F.2d 257, 260 (8th Cir. 1991) (twenty percent reduction for inadequate documentation); Doughtie v. City of Corinth, No. CIV. A. 3:93CV163-D-A, 1997 WL 786765 at *5 (N.D. Miss. Dec. 1, 1997) (twenty-five percent reduction for inadequate documentation).
As stated, plaintiff's counsel claims he is entitled to 195.5 hours. The court has rounded its deduction to the nearest quarter-hour so as to be consistent with plaintiff's counsel's quarter-hour billing rate.
b. Excessive time billed prior to filing suit
Notwithstanding the problematic record-keeping, the court has attempted to analyze the reasonableness of specific hours recorded in relation to the work performed and the nature of the case. In determining the reasonableness of the hours expended, the court considers severalJohnson factors, including (1) the time and labor required, (2) the novelty and difficulty of the issues, (3) the skill requisite to perform the legal services properly, (7) the time limitations imposed by the client or the circumstances, (8) the amount of time involved and the results obtained), (9) the experience, reputation, and ability of the attorney, and (12) awards in similar cases. See Hensley, 461 U.S. at 429-30, 103 S.Ct. at 1937-38.
The court finds that the time billed prior to filing suit (essentially for opening the file and preparing the complaint) is excessive. Plaintiff's counsel has forty years of legal experience and expertise in FDCPA cases. He has filed twenty-six FDCPA lawsuits in this district within the past five years. Counsel should have been able to benefit from research, briefs, and other authorities used in the previous FDCPA lawsuits he filed. Hagan submitted no declarations or other evidence to show the necessity of performing significant original research in this case. The claims in this case were not complex. Both legally and factually the case required minimal development. There were no dispositive motions or trial. The case settled after six months of discovery practice.
See supra note 9.
Looking first at the specific hours billed prior to filing the complaint, the court calculates a total of 13.75 hours, Which includes approximately 10.75 hours for legal research, drafting, and preparing the complaint. The complaint is nine pages in length; jurisdiction, venue, and the parties are set forth in three pages; the facts are described in three pages; and the FDCPA and state law claims are stated in three pages.
The complaint was filed on December 15, 1999.
The court calculates 13.75 hours from the following time entries:
9/28/99 .25 10/26/99 .50 11/11/99 .25 12/10/99 5.00 10/6/99 .25 11/1/99 .25 11/15/99 .25 12/13/99 .75 10/14/99 .25 11/3/99 .50 11/16/99 .25 12/14/99 1.75 10/15/99 1.25 11/4/99 .25 12/16/99 .75 12/16/99 1.25
Plaintiff's counsel billed 1.25 hours for "[p]reparing Complaint. . . ." on December 16, 1999, the day after he filed the lawsuit. As the date of the December 16, 1999, entry is apparently a clerical error, the court has included these 125 hours in its calculation of time spent prior to filing the complaint.
As stated previously, plaintiff's counsel's made single time entries for multiple tasks making it impossible to segregate time spent on separate tasks such as drafting and researching. The court calculated 10.75 hours for legal research, drafting, and preparing the complaint based on the following time entries:
10/6/99 .25 12/10/99 5.00 10/14/99 .25 12/13/99 .75 10/15/99 1.25 12/14/99 1.75 11/1/99 .25 12/16/99 1.25
Although each case stands on its own particular facts and there may be need for fresh research, the court finds that extensive research would not be necessary to draft the complaint in this case. Drafting would entail mainly setting forth the factual basis for the complaint and FDCPA violations as plaintiff's counsel did in other FDCPA cases filed by him. The court finds that a reasonable amount of time for opening the file and drafting the complaint in this case is five hours, and accordingly, will deduct 8.75 hours from the time billed prior to filing the complaint. See Savino v. Computer Credit. Inc., 71 F. Supp.2d 173, 176 (E.D. N Y 1999) ("initial client intake, preliminary research, and the drafting of a simple FDCPA complaint should have taken no more than three hours") (citing Shapiro v. Credit Protection Ass'n. Inc., 53 F. Supp.2d 626, 628 (S.D.N.Y. 1999))("he opened a file, prepared a simple, four-page complaint, and attended a pretrial conference, tasks reasonably accomplished in three hours for an attorney with extensive experience in FDCPA litigation")); Arevalo, 1998 WL 456541 (N.D. Ill. July 31, 1998) (FDCPA class action where the court reduced seven hours of legal research and editing the complaint to three hours).
c. Excessive time spent on "legal research"
Regarding the time entries for "legal research" billed after filing the complaint, the court calculates that plaintiff's counsel billed 30.50 hours for legal research. Initially, the court finds that two hours must be deducted from this total. Plaintiff's counsel billed one hour on January 26, 2000, for "research issues raised by defense re punitive damages" and one hour on March 10, 2000, for "Legal research re FDCPA cases re product defects." As neither punitive damages nor product defects were issues in the case, it is appropriate to deduct two hours, leaving 28.50 hours to review for reasonableness.
Again, the court notes that this calculation is necessarily an approximation due to the lumping of tasks. The court calculated 30.5 hours from the following time entries:
Considering that the case presented simple legal and rudimentary procedural issues, the court finds that 28.50 hours for legal research is not warranted. The hours do not reflect any benefits of plaintiff's counsel's federal and FDCPA expertise. "Johnson recognizes the common sense proposition that easier and more routine cases take less time to prepare than do cases that present novel questions. Similarly, it is also reasonable to
12/20/99 .25 3/27/00 .50 7/12/00 1.00 1/26/00 1.00 3/28/00 .75 7/13/00 .25 2/4/00 .50 3/29/00 .75 8/15/00 .50 2/7/00 .75 5/1/00 .25 9/1/00 1.00 2/8/00 1.50 6/22/00 .25 9/5/00 2.00 2/9/00 .50 6/23/00 2.50 9/25/00 1.00 3/10/00 1.00 6/26/00 2.50 11/10/00 2.50 3/21/00 3.50 6/30/00 3.25 3/24/00 1.00 7/10/00 1.50 assume that a more experienced attorney will take less time to accomplish a routine task than will a novice."LULAC, 119 F.3d at 1233 at n. 3 (citing Johnson, 488 F.2d at 717-18).
As discussed above, the time entries for "legal research" do not identify the subject of the research. The only matter really litigated in the case was a discovery dispute regarding eleven interrogatories and six requests for production. The discovery dispute did not present any difficult issues of law or procedure. Again, plaintiff's counsel has placed the court in the position of having to decipher the reasonableness of the time recorded without having the benefit of any evidence supporting the reasonableness of time expended. The court will therefore reduce the remaining hours described as "legal research" by fifty percent or 14.25 hours.
d. Excessive time spent on discovery motion practice
By the court's calculation, Hagan's attorney spent 62.75 hours on a discovery motion to compel answers to interrogatories and requests for production, reply briefs, supplemental briefs, an appeal to the district judge, and motions for reconsideration and for contempt. Defendants argue that the hours spent on the discovery motions should be disallowed entirely as unnecessary and excessive. The court has scrutinized the time billed in relation to the content, length, and necessity of the discovery pleadings, as well as the degree of success Hagan achieved in relation to the amount of time spent, and finds that a majority of hours are not justified.
These 62.75 hours do not include the 40 hours counted as "legal research." The court calculated 62.75 hours based on the following time entries:
6/1/00 .75 7/19/00 5.00 8/21/00 2.25 10/19/00 1.25 6/19/00 3.25 7/20/00 3.25 8/22/00 .25 11/3/00 4.50 6/20/00 4.25 7/31/00 1.50 9/6/00 2.50 11/6/00 6.25 6/21/00 5.00 8/7/00 3.50 9/7/00 1.00 11/7/00 1.00 7/6/00 3.50 8/8/00 1.00 9/26/00 4.25 11/8/00 1.00 7/11/00 .25 8/14/00 .25 9/27/00 2.25 7/17/00 1.75 8/17/00 .25 10/16/00 2.75
The discovery issues were not complex or novel, yet plaintiff's counsel recorded 33.50 hours for his original motion to compel and supplemental memorandum. While the defense bears responsibility for Hagan having to file the motion to compel in the first instance, and the court ordered Hagan to file the supplemental memorandum, it is evident that the large amount of time spent on the discovery dispute was excessive. In addition, the original motion to compel and supplemental memorandum should have materially minimized the time necessary to prepare the subsequent related motions and pleadings. Nevertheless, after spending 33.50 hours on the initial discovery motion practice, plaintiff's counsel spent the following additional hours:
The court calculated 33.50 hours based on the following time entries:
6/1/00 .75 7/19/00 5.00 6/19/00 3.25 7/20/00 3.25 6/10/00 4.25 7/31/00 1.50 6/21/00 5.00 8/7/00 3.50 7/6/00 3.50 8/8/00 1.00 7/11/00 .25 8/14/00 .25 7/17/00 1.75 8/17/00 .25
The court initially ordered the parties to attempt to resolve Hagan's motion to compel without court involvement. When that attempt was only partially successful, the court ordered Hagan to file a supplemental memorandum addressing the unresolved discovery issues.
(a) 6 hours for drafting the pleadings filed in connection with his appeal of a ruling on two discovery requests; and
(b) 23.25 hours for drafting a seven-page motion for contempt for failure to fully provide discovery, and a two-page motion for reconsideration of the original motion to compel. Immediately after filing the motion for contempt, plaintiff's counsel withdrew the motion. Of the 23.25 hours, 10.75 hours were spent on drafting a reply brief to the defense opposition to the motion for reconsideration. The reply brief was never filed into the court record.
The court calculated 6 hours based on the following time entries:
8/21/00 2.25 8/22/00 .25 9/6/00 2.50 9/7/00 1.00
The court calculated 23 25 hours based on the following time entries:
9/26/00 4.25 11/3/00 4.50 9/27/00 2.25 11/6/00 6.25 10/16/00 2.75 11/7/00 1.00 10/19/00 1.25 11/8/00 1.00
itt time entries on November 3, 2000 for 4.50 hours and November 6, 2000 for 6.25 hours.
The court finds that the time billed for discovery motion practice is excessive and that a substantial reduction in calculating the lodestar figure is warranted. In deciding the degree of reduction to make, the court finds that the reduced hours should reflect the limited success plaintiff's counsel had on the various discovery motions. With respect to the original motion to compel, the court granted fewer than half of Hagan's discovery requests. The district judge denied Hagan's subsequent appeal, Hagan abandoned his motion for contempt and this Magistrate Judge denied Hagan's motion for reconsideration. There is no evidence that any of this discovery motion practice was instrumental or led to the settlement of Hagan's claims. The court finds, based upon its own experience and a review of similar cases, that a reasonable attorney could have accomplished the same results as plaintiff's counsel by investing roughly 25 hours of work on discovery. Accordingly, the court finds that the time billed for discovery motion practice should be reduced by 37.75 hours.
A. reduction in hours for lack of success is not meant to maintain any proportionality between the amount of settlement and attorney's fees, but rather to assure that fees are awarded only to "4 the extent the litigant was successful. "The district court may attempt to identify specific hours that should be eliminated, or it may simply reduce the award to account for the limited success. The court necessarily has discretion in making this equitable judgment." Hensley, 461 U.S. at 436-37, 103 S.Ct. 1941.
e. Excessive time spent on settlement
It is well-settled that a prevailing party may recover for all time "reasonably expended in pursuit of the ultimate result achieved, in the same manner that an attorney traditionally is compensated by a fee-paying client for all time reasonably expended on a matter." Hensley, 461 U.S. at 431, 103 S.Ct. 1933. Thus, compensation for time expended on settlement negotiations is proper. See e.g., Wayne v. Village of Sebring, 36 F.3d 517, 532 (6th Cir. 1994), cert. denied, 514 U.S. 1127, 115 S.Ct. 2000, 131 L.Ed.2d 1001 (1995).
In connection with the settlement of Hagan's claims, his attorney billed a total of 25.50 hours for time spent in response to court ordered settlement negotiations. of these hours, 9.75 were spent in connection with the first settlement negotiations.
The court calculated 25.50 hours based on the following time entries:
11/20/00 3.75 12/13/00 .75 3/7/01 1.00 11/28/00 3.50 12/22/00 .25 3/8/01 .50 11/29/00 2.50 1/4/01 .25 3/9/01 .25 12/1/00 3.50 1/26/01 .25 3/20/01 1.25 12/4/00 .50 2/12/01 1.25 3/21/01 3.75 12/12/00 .50 3/6/01 1.75
The court did not include any time spent on settlement attempts initiated by the parties in the early stages of the litigation.
3.75 hours on November 20, 2000, for preparing a settlement letter to the court, 3.5 hours on November 28, 2000, for preparing for the settlement conference, and 2.5 hours on November 29, 2000, for attending the settlement conference.
The parties settled Hagan's substantive claims on November 29 or 30, 2000, leaving any future resolution relating to attorney's fees and costs for subsequent settlement attempts. With respect to those subsequent attempts to settle attorney's fees and costs, Hagan's attorney billed 19 hours in preparation for settlement, of which approximately 3.75 hours was for time spent during the March 21, 2001, settlement conference.
Plaintiff's attorney's time records reflect that the settlement conference was held on November 29, 2000; whereas the court record reflects that it was held on November 30, 2000.
As plaintiff's counsel lumped time spent in settlement conference with other tasks, the actual time spent in settlement conference was probably less, but it is impossible for the court to make a more discrete analysis.
All tolled, it appears that plaintiff's counsel is billing over 25 hours in relation to settlement of this $6,000.00 case. Presumably, the initial 9.75 hours related to settlement included plaintiff's counsel's assessment of attorney's fees and costs, such
that subsequent preparation for negotiation of the fees and costs, would have benefitted from the earlier settlement exercise.
Accordingly, the court finds that the time billed for settlement of the claims in this case is excessive. A reasonable number of hours for settlement of the claims in this case is ten hours; therefore, the court will deduct is so hours. Compare Jackson v. Bellsouth Telecommunications, Inc., No. 98 C 1191, 2000 WL 715590 at *4 (N.D. Ill. June 2, 2000) (FDCPA case wherein court found that twelve hours for settlement should be reduced to three hours).
f. Unnecessary time expenditure
Finally, the court finds that a billing charge of .25 hours on December 29, 2000, for reviewing a deposition must be excluded as unnecessary because it was billed after the substantive claims settled.
g. Clerical work charged at attorney rate
Plaintiff's attorney's time records reflect time entries for tasks of a clerical nature. The records do not segregate time spent by non-attorney or support staff. All time entries are billed at an attorney's hourly rate.
A prevailing plaintiff should not recover an attorney rate for work that clerical staff could have easily accomplished, regardless of who actually performed the work. Cf. Missouri v. Jenkins, 491 U.S. 274, 109 S.Ct. 2463, 105 L.Ed.2d 229 (1989) (secretarial tasks should not be billed at paralegal rate). ""It is appropriate to distinguish between legal work, in the strict sense, and investigation, clerical work, compilation of facts and statistics and other work which can often be accomplished by non-lawyers but which a lawyer may do because he has no other help available. Such non-legal work may command a lesser rate. Its dollar value is not enhanced just because a lawyer does it.'" Id., 491 U.S. 274, 109 S.Ct. 2463, 105 L.Ed.2d 229 (1989) (quoting Johnson, 488 F.2d at 717).
Normally, clerical or secretarial costs are part of an attorney's office overhead and are reflected in the billing rate. See Jane L. v. Bangerter, 61 F.3d 1505, 1517 (10th Cir. 1995); In re North, 59 F.3d 184, 195 (D.C. Cir. 1995); Gough v. Apfel, 133 F. Supp.2d 878 (W.D. Va. 2001); Wermelinger v. Connecticut General Life Ins. Co., No. Civ.A. 3:97-CV-1100D, 1998 WL 401607 (N.D. Tex. July 15, 1998) (citing In re Mullins, 84 F.3d 459, 469 (D.C. Cir. 1996); Hirschey v. FERC, 777 F.2d 1, 6 (D.C. Cir. 1985)). Hagan has not shown that the prevailing practice in the local community is otherwise. Accordingly, the court will deduct the 1.5 hours plaintiff's attorney billed for faxing documents from the total allowable hours. See also Harris v. L L Wings, Inc., 132 F.3d 978, 985 (4th Cir. 1997) (approving district court's elimination of hours spent on secretarial tasks from its lodestar calculation); Barrilleaux v. Thayer Lodging Group, Inc., No. Civ.A. 97-3252, 1999 WL 397958 (E.D. La. June 11, 1999) (reducing the hours of attorney time to reflect deductions for clerical tasks); Wermelinger, 1998 WL 401607 at *2 (reducing the lodestar by three hours for time spent on clerical tasks); Corman v. Lifecare Acquisitions Corp., No. Civ.A. 3:96-CV-0755D; 1998 WL 185517 at *2 (N.D. Tex. April 10, 1998) (where paralegat rates were charged for the performance of clerical work, the court reduced the number of awardable paralegal hours by 42); Inks v. Healthcare Distrib. of Ind., Inc., 901 F. Supp. 1403, 1415-16 (N.D. Ind. 1995) (finding that the defendant should not be charged with tasks that could be handled by clerical staff).
See time entries for faxing documents on January 4, 2000, February 16, 2000, and October 2, 2000. The court counted only .25 hours of the .50 hours recorded on January 4, 2000. Plaintiff's attorney recorded .50 hours for both faxing documents and making a telephone call. As he typically charged .25 hours for any phone call, the court has allocated only .25 hours to the task of faxing.
3. Calculation of lodestar
After deducting a total of 98 hours, the hours left intact are 97.50. Applying a $200.00 attorney hourly rate to 97.50 hours, the lodestar amount is $19,500.00. Compare Savino, 71 F. Supp.2d 173 (reducing 187 hours in a simple FDCPA case to 20); Cortez v. Trans Union Corp., No. 94 C 7705, 1997 WL 7568 (N.D. Ill. Jan. 3, 1997) (in FDCPA class action resolved on summary judgment, court reduced a request for $28,163.00 in attorney fees to $15,028.75); Mares v. Credit Bureau of Raton, 801 F.2d 1197 (10th Cir. 1986) (affirming a district court's finding that the FDCPA claim that was vigorously litigated and culminated in a short trial could have been accomplished in 50 hours of attorney time.)
In summary, the hours deducted are: 19.50 hours based on a 10% reduction of all hours for inadequate documentation; 8.75 hours as excessive time billed prior to filing the complaint; 2.00 hours for unnecessary legal research; 14.25 hours as excessive time billed for legal research after filing the complaint; 37.75 hours for excessive time billed for discovery motion practice; 15.50 hours for excessive time billed for settlement purposes; .25 hours for unnecessary time billed for reviewing a deposition after the substantive claims had been settled.
Defense counsel charged his client 125.8 hours which "4 included travel time to New Jersey to attend depositions of defendants. Plaintiff's counsel participated in the depositions by telephone. At $155 per hour (defense counsel's verified hourly rate), defense counsel's billed his client a total fee of $19,499.00.
4. Enhancement of the lodestar
There is a strong presumption that the lodestar is the reasonable fee, and the fee applicant bears the burden of showing that such "an adjustment is necessary to the determination of a reasonable fee." Blum, 465 U.S. at 898, 104 S.Ct. at 1548. Several Johnson factors are necessarily included in the lodestar analysis and thus cannot be considered in the upward adjustment analysis. These factors are: (1) the time and labor required; (2) the novelty and difficulty of the issues; (3) the skill requisite to perform the legal services properly; (7) the time limitations imposed by the client or the circumstances; (8) the amount involved and the results obtained, and (9) the experience, reputation, and ability of the attorneys. Pennsylvania v. Delaware Valley Citizens' Council for Clean Air, 478 U.s. 546, 565, 106 S.Ct. 3088, 3098, 92 L.Ed.2d 439 (1986); Walker, 99 F.3d at 771-72 and n. 12 (factors one, two, three, seven, eight, and nine); Shipes v. Trinity Indus., 987 F.2d 311, 320 (5th Cir.), cert. denied, 510 U.S. 991, 114 S.Ct. 548, 126 L.Ed.2d 450 (1993) (factors two, three, eight, and nine are reflected in the lodestar amount). Factor six, the contingent nature of the case, may no longer serve as the basis for enhancement of attorney's fees. See Walker, 99 F.3d at 772 (citing City of Burlington v. Dague, 505 U.S. 557, 567, 112 S.Ct. 2638, 2643, 120 L.Ed.2d 449 (1992)); Rutherford v. Harris County. Texas 197 F.3d 173, 192-93 (5th Cir. 1999).
The remaining Johnson factors, (4) preclusion of other employment by the attorney due to acceptance of the case, (5) the customary fee in the community, (10) the undesirability of the case, (11) the nature and length of the professional relationship with the client, and (12) awards in similar cases do not support an upward adjustment in this case. An upward adjustment is not warranted by the. facts nor supported by any evidence in the record. See Blum, 465 U.S. at 898-901, 104 S.Ct. at 1548-1500. Hagan offered no evidence to show that this case precluded his attorney, "4 due to conflicts or excessive time requirements, from taking other cases. Hagan offered no evidence of the customary fee in this type of case, any evidence that this was a Particularly undesirable case, or any evidence that would support an upward adjustment based on the nature and length of the attorney-client relationship or awards in similar cases. The court considered awards in similar cases in establishing the lodestar. None of the decisions reviewed warrant an adjustment to the lodestar.
Plaintiff's counsel did not cite any FDCPA cases to support the amount of his requested fee.
"Enhancement of the lodestar amount is appropriate only in certain `exceptional' cases — those in which there is a substantial risk of not prevailing, or in which the issues are so novel or complex that the lodestar amount awarded would not provide a reasonable fee that would adequately reflect the quality of representation." Von Clark, 916 F.2d at 259 (citing Delaware Valley Citizens' Council for Clean Air, 478 U.S. at 566-67, 106 S.Ct. at 3098-99). Accordingly, the court finds that Hagan has not carried his burden to show that an upward adjustment is necessary to establish a reasonable fee.
B. COSTS
The FDCPA allows a prevailing plaintiff reimbursement of the "costs of the action." 15 U.S.C. § 1692k(a)(3). Acourt generally will award reasonable out-of-pocket expenses incurred by the prevailing attorney which are normally charged separately to feepaying clients and which are not incorporated as part of office overhead into the attorney's billing rate. See Assoc. Builders Contractors of Louisiana, Inc. v. Orleans Parish Sch. Bd., 919 F.2d 374, 380 (5th Cir. 1990)
Hagan's original motion requests reimbursement of expenses totaling $1,511.72 for court filing costs, photocopying, telephone, postage, deposition transcripts, computer research charges, and courier charges. Similar to the lumping of tasks in his time records, Hagan's attorney combined unitemized costs for copying, telephone, and postage in single sums for each month. He also failed to provide supporting documentation. Defendants argue that all of the expenses should be denied for failure to substantiate.
The court then allowed Hagan an opportunity to substantiate and clarify the costs. Hagan's supplemental "Note of Evidence" included additional costs not part of his original request. The additional costs are for postage and photocopying charges for the months of March and April, 2001, totaling $77.38, and a computer research charge in the amount of $28.73. Thus, Hagan raised his cost request from $1,511.72 to $1,617.83.
After reviewing his supplemental "Note of Evidence," together with plaintiff's counsel's original cost records, the court finds that certain costs remain unsubstantiated and may not be reimbursed. These unsubstantiated costs are: (1) all telephone charges; (2) $50.43 on June 30, 2000, for "postage, copies, and phone charges"; (3) $9.34 on August 31, 2000 for "Copies. New Orleans Reproductions;" (4) $21.60 on September 30, 2000, for "Postage and copies" and (5) $28.73 for computer research.
Attached to Hagan's Motion to Set Fee and Cost as "Hagan Detailed Fees and Costs."
See "Hagan Detailed Fees and Costs" at 4-5.
Id.
Id.
Plaintiff's counsel issued a check in the amount of $28.73 to "Pacer Service Center" on January 26, 2001, but he failed to include it as an item of cost in his original cost record, and the check shows that it was for "Hagan Sapia," thus, indicating that some undeterminable portion of the cost is chargeable to another client.
Hagan is not entitled to reimbursement of postage as that cost is ordinarily part of an attorney's ordinary overhead and Hagan has not shown that it should be treated otherwise in this case. See See e.g., Altergott v. Modern Collection Techniques, Inc., 864 F. Supp. 778, 783, (N.D. Ill. 1994).
The court finds that Hagan is entitled to recover the following reasonable costs totaling $1,466.39: $150.00 filing fee; $1,103.40 for costs of two deposition transcripts ($364.65 and $738.75); $195.15 for photocopying and reproduction costs; $8.00 for courier cost; $9.84 for cost of electronic research.
C. CONCLUSION
The court finds that a reasonable attorney's fee in this case is $19,500.00, and reasonable costs total $1,466.39. Accordingly,
IT IS ORDERED that judgment be entered in favor of plaintiff Matthew L. Hagan, Jr. and against defendants MRS Associates, Inc., Saul Freedman, James Daniels, Bob Sittimeri, Chris Bradbury, and Illinois National Insurance Company in the amount of $19,500.00 in attorney's fees and $1,466.39 in costs.