J. THOMAS MARTEN, Chief District Judge.
Plaintiff Matthew Joel Weaver ("plaintiff") sought monetary damages against defendant Performant Recovery, Inc. ("defendant") for alleged violations of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692 et seq., and the Kansas Consumer Protection Act ("KCPA"), K.S.A. § 50-623 et seq. On April 2, 2014, the parties reached a confidential settlement during mediation. Dkt. 28, at 2. As part of the settlement, the parties agreed to have the court determine reasonable attorney's fees. Dkt. 28, at 3. This matter is therefore before the court on plaintiff's Motion for an Award of Costs and Attorney Fees (Dkt. 27).
In his Complaint, plaintiff alleged that, beginning on February 21, 2013, defendant's agents and/or employees began contacting him regarding an alleged debt. Plaintiff notified defendant of his ongoing bankruptcy but claimed that defendant continued to pursue the outstanding debt. According to plaintiff, on March 5, 2013, one of defendant's agents "insisted that plaintiff make a payment, threatened to `destroy' plaintiff's credit and stated she would continue to call plaintiff despite being advised of the bankruptcy automatic stay." Dkt. 1-1, ¶ 10. Plaintiff retained attorney A. Scott Waddell ("Waddell") on or about April 11, 2013. On that same day, plaintiff sent defendant a Nelson v. Miller letter which included an offer to settle for $5,900. On May 10, 2013, in response to plaintiff's demand, defendant denied any liability but made a settlement offer in the amount of "$1,000.00 in an effort to avoid the time and expense of litigation." Dkt. 28, at 2. Plaintiff rejected the offer.
On July 7, 2013, plaintiff filed a Petition for Damages for defendant's alleged violations of the FDCPA and KCPA in the Johnson County, Kansas District Court (Dkt. 1-1). On August 9, 2013, defendant removed this matter to the United States District Court for the District of Kansas (Dkt. 1). On that same date, defendant answered plaintiff's Petition, denying any and all liability and requesting an award of attorney's fees (Dkt. 3). On April 2, 2014, this matter was successfully mediated, resulting in a confidential settlement. Dkt. 28, at 2-3. As part of the settlement, the parties agreed to have this court determine reasonable attorney's fees. Dkt. 28, at 3.
The FDCPA allows for attorney's fees for successful litigants. The Act provides, in relevant part:
15 U.S.C. § 1692k.
Likewise, the KCPA provides for reasonable attorney's fees following a settlement. The Act specifically provides:
(2) an action under this section has been terminated by a judgment, or settled.
K.S.A. § 50-634(e)(1)-(2).
Plaintiff requests an award of fees in the amount of $20,737.46, which represents $20,432.50 for 75.20 hours of work and $304.96 for costs and fees associated with the litigation. Dkts. 36, 36-1. Defendant contests the amount of this award given the limited amount of work done and the early settlement and requests that the court award plaintiff and/or his counsel no more than $2,500. Dkt. 29. Specifically, defendant argues that the claimed fees and costs are unreasonable and unsustainable due to: (1) unnecessary billings; (2) excessive and duplicative billings; and (3) billings for administrative, paralegal, and associate tasks. Dkt. 29, at 2. Defendant also disputes the hourly rate. Dkt. 29, at 2.
As a threshold matter, defendant argues that the fee request does not comply with either the Federal Rules of Civil Procedure or the Kansas Local Rules and should fail altogether on this basis alone. The court therefore deals with this threshold matter at the outset.
According to defendant, both the Federal Rules of Civil Procedure and the Kansas Local Rules prevent a court from considering a motion to award attorney's fees until after the moving party has advised the court that the parties were unable to reach an agreement with regard to the award. Dkt. 29, at 4. Defendant alleges that attorney Waddell first emailed defense counsel regarding the issue of attorney's fees on April 24, 2014, at 12:09 pm. Dkt. 31, at 75. That same day, allegedly without waiting for a reply from defendant, Waddell filed the instant fee request. Defendant argues that Waddell's failure to abide by the applicable rules, on its own, precludes his fee claim. Dkt. 29, at 4. The court disagrees.
Federal Rule of Civil Procedure 54 sets forth the requirements for seeking fees and costs. With regard to attorney's fees, the rule states as follows:
FED. R. CIV. P. 54(d)(2). It is clear from a plain reading of the text that Rule 54 by itself does not require the moving party to initiate any kind of consultation with the other party, either before it files a motion for fees or otherwise.
However, Rule 54 works in conjunction with Kansas Local Rule 54.2, which states, in relevant part:
D. KAN. R. 54.2. While the local rule does, in fact, require the moving party to consult with all other parties on the issue of attorney's fees, it does not require that this consultation be done before the motion for fees is made. Rather, it simply requires that the moving party promptly initiate consultation with the other parties. D. KAN. R. 54.2(a).
Here, Waddell claims that he sent defendant's counsel, namely Michael Klutho ("Klutho") and Pamela Welch ("Welch"), detailed time sheets before filing his motion for fees. Dkt. 36, at 2. He also requested, via email on April 24, 2014 (notably the same day that plaintiff filed his fees motion), that Klutho and Welch advise him of when they would be able to discuss his request for fees. Dkt. 31, at 75. Attached to that email was a second copy of Waddell's detailed time sheets. Dkt. 31, at 76-90. Waddell claims that he never received a response to this email from either Klutho or Welch. Dkt. 36, at 2. Waddell claims that, on May 13, 2014, he called and spoke with Klutho and Welch separately in an attempt to reach an agreement with respect to a fee award. Dkt. 33, at 1. The parties could not agree on an award. Dkt. 33, at 1.
Therefore, on May 14, 2014, Waddell filed his Statement of Consultation (Dkt. 32). Two days later, on May 16, 2014, Waddell filed an Amended Statement of Consultation (Dkt. 33) in which he detailed the following: (1) his attempts to reach an agreement with regard to an award with Klutho and Welch, and (2) that no agreement could be reached. The court finds that Waddell's actions and Amended Statement of Consultation satisfy the requirements of Kansas Local Rule 54.2(a), (c)(1), (d).
In the alternative, defendant argues that Waddell's billings are neither justified nor reasonable under applicable law. Specifically, defendant argues that Waddell's fee is unreasonable because: (1) the hourly rate is unreasonable for this type of claim; (2) this matter was settled during an early mediation without any motion practice or extensive discovery; and (3) the billing records demonstrate improper billing practices in that they include duplicative entries and charges for time not expended, non-billable tasks, and administrative clerical work. Dkt. 29, at 8.
A determination of a reasonable attorney's fees award begins with calculating the "lodestar," that is, "the reasonable number of hours spent on litigation multiplied by a reasonable hourly rate." United Phosphorus, Ltd. v. Midland Fumigant, Inc., 205 F.3d 1219, 1233 (10th Cir. 2000) (internal citations omitted). The party seeking an award of fees has the burden of proving both the number of hours spent and the reasonableness of those hours. Id. Once an applicant has met this burden, the lodestar figure is presumed to be a reasonable fee. Robinson v. City of Edmond, 160 F.3d 1275, 1281 (10th Cir. 1998). The court may adjust the lodestar, if necessary, to account for the factors set forth in the Kansas Rules of Professional Responsibility. Davis v. Miller, 269 Kan. 732, 7 P.3d 1223, 1236 (Kan. 2000); see also Sheldon v. Vermonty, 237 F.Supp.2d 1270, 1274 (D. Kan. 2003). These factors include:
KANSAS RULES OF PROF'L RESPONSIBILITY, 1.5(a); see also Kan. S. Ct. R. 226 (2009), Wittig v. Westar Energy, Inc., 44 Kan.App.2d 182, 235 P.3d 515, 529-30 (Kan. Ct. App. 2010), Johnson v. Westhoff Sand Co., 281 Kan. 930, 135 P.3d 1127, 1135-36 (Kan. 2006).
The court must first determine the amount of hours reasonably expended by counsel in plaintiff's case. In order for the moving party to satisfy its burden at this step, it "must submit `meticulous, contemporaneous time records that reveal, for each lawyer for whom fees are sought, all hours for which compensation is requested and how those hours were allotted to specific tasks.'" United Phosphorus, 205 F.3d at 1233 (quoting Case v. Unified Sch. Dist. No. 233, Johnson County, Kan., 157 F.3d 1243, 1249 (10th Cir. 1998)). "[T]he overriding consideration . . . [is] whether the attorney's hours were `necessary' under the circumstances." Robinson, 160 F.3d at 1281. This requires the court to determine "what hours a reasonable attorney would have incurred and billed in the marketplace under similar circumstances." Id. "The prevailing party must make a good-faith effort to exclude from a fee request hours that are excessive, redundant, or otherwise unnecessary." Id. at 1280. The court "is justified in reducing the reasonable number of hours if the attorney's time records are `sloppy and imprecise' and fail to document adequately how he or she utilized large blocks of time." Id. (citing Jane L. v. Bangerter, 61 F.3d 1505, 1517 (10th Cir. 1995)).
Here, Waddell claims to have spent 75.20 hours on plaintiff's case, including time spent on the present motion. Dkt. 36-1, at 27-41. Defendant contests this calculation, alleging that Waddell's proffered hours contain time spent on excessive, duplicative, non-billable, inadequately documented, and clerical tasks. Dkt. 29, at 9.
There is no doubt that Waddell's time sheets are thorough. They total fifteen pages for a case that settled in mediation absent any motion practice or significant discovery. Dkt. 36-1, at 27-41. But that, in and of itself, gives this court pause. Neither party has alleged that this case involved particularly complex or unusual matters. This is true despite the fact that Waddell claims that "litigating with Mr. Klutho is contentious and expensive." Dkt. 36, at 5. Nor does Waddell allege that his acceptance of this case was to the detriment of his other cases or precluded him from taking other cases. In fact, by his own admission, Waddell is well-versed in this area of the law, having "been involved in hundreds of consumer protection cases over the previous five years alone." Dkt. 28-1, at 21.
Plaintiff himself acknowledges that this case involved no motion practice and only basic, preliminary discovery. Indeed, there was only one deposition, plaintiff's, which lasted approximately 2.2 hours. Dkt. 29, at 3. The mediation and ultimate settlement of this case only took 1.7 hours. Dkt. 29, at 3. Moreover, there is evidence that plaintiff's pleadings are comprised mostly of boilerplate language.
The court cannot therefore help but question whether Waddell's reported 75.20 hours were reasonable. Indeed, upon careful, scrutinized review, the court finds that counsel's time sheets contain multiple entries for clerical and paralegal work and non-billable hours. There are also numerous instances of excessive hours.
Defendant argues that Waddell's time sheets contain multiple entries for "non-billable administrative and clerical tasks," at a rate of $275 per hour, which it argues should be excluded entirely. Dkt. 29, at 14. There is no doubt that paralegal fees are compensable. However, "[p]urely clerical or secretarial tasks should not be billed at a paralegal rate, regardless of who performs them." Univ. of Kan. v. Sinks, 2009 U.S. Dist. LEXIS 89783, at *26 (D. Kan. Sept. 28, 2009) (quoting Missouri v. Jenkins by Agyei, 491 U.S. 274, 288 n.10 (1989)). It therefore stands to reason, then, that "purely clerical or secretarial tasks" should also not be billed at an attorney rate, either, regardless of who performs them. The court therefore determines that "[t]asks that amount to filing, organizing files, making copies, printing, ordering file folders, organizing boxes, updating files with correspondence and pleadings, and preparing files for storage" must be deducted as purely clerical work that is not compensable. Sinks, 2009 U.S. Dist. LEXIS 89783, at *26-27; see also Bell v. Turner Rec. Comm'n, 2010 U.S. Dist. LEXIS 1547, at *15 (D. Kan. Jan. 8, 2010) (deducting time attorney spent on "purely clerical or secretarial tasks," such as "ordering and paying for copies; communication with court reporters; obtaining and preparing summonses; and communication with process servers.").
After a thorough review of Waddell's time sheets, the court identifies 2.9 hours as "purely clerical or secretarial tasks." These hours are non-compensable and will therefore be deducted from the total.
Waddell's records also indicate a substantial amount of time spent on duties typically performed by a paralegal. The United States Supreme Court has determined that
Jenkins by Agyei, 491 U.S. at 288 n.10; see also Erickson v. City of Topeka, 239 F.Supp.2d 1202, 1208 (D. Kan. 2002).
Here, the court identifies 12.4 hours that should have been billed at a lower paralegal rate. These hours involve drafting correspondence, doing research, and completing pleadings. In a similar 2011 case, Judge Robinson determined that $125 per hour was a reasonable rate for paralegals in the Kansas City area doing FDCPA litigation. See Wilkinson v. I.C. Sys., 2011 U.S. Dist. LEXIS 128293, at *6 (D. Kan. 2011). As such, the court finds that 12.4 hours will be billed at the $125 hourly rate.
The court is also concerned about Waddell's billing to plaintiff costs associated with Waddell's ethics complaint against Klutho to the state bar. Waddell claims that, "[d]uring this litigation, [he] became aware that Mr. Klutho had been repeatedly using the Kansas bar number of another lawyer on pleadings pending in the United States District Court — District of Kansas." Dkt. 26, at 7. The following entries appeared on Waddell's time sheets:
In his Reply, Waddell himself admits that "this issue has no relevancy to the fee motion." Dkt. 36, at 7. While Waddell indicated "no charge" for some of his work related to this complaint, he failed to do so for all. It is unclear to the court upon what basis Waddell justifies passing any of this cost along to plaintiff. Therefore, the court deducts .30 hours as non-compensable.
Defendant next alleges that Waddell's time sheets contain multiple instances of duplicative and excessive entries.
Plaintiff is correct in that this case was active for nearly one year. However, this time is somewhat misleading. Plaintiff retained Waddell on April 11, 2013, but did not file suit against defendant until July 7, 2013. The case was removed to this court on August 9, 2013, and settled on April 2, 2014. The major events of this case can be summarized as follows:
Simultaneous to these events, the parties conducted minimal discovery which consisted of the following:
Dkt. 31, at 38-58, 60-66; Dkt. 36-1, at 9-17. There is also some email and general correspondence mentioned in the record.
The only motion practice that has taken place in this case is plaintiff's pending motion for attorney's fees. The court cannot help but question what Waddell spent 75.20 hours doing in this matter. By comparison, in Wilkinson, the same case in which Judge Robinson awarded an hourly rate of $125 for paralegal fees, the Kansas City attorneys submitted a bill in the amount of $18,386. Wilkinson, 2011 U.S. Dist. LEXIS 128923, at *13. This was for 63.4 hours of work billed at $290 per hour. Id. However, the difference between Wilkinson and the case at hand is that Wilkinson "settled on the eve of trial, and much of counsel's time was spent on discovery, drafting the pretrial order, preparing for trial, and negotiating the settlement." Id. at *12-13. Here, the parties were nowhere close to trial at the time of settlement. Furthermore, discovery in this case was minimal and consisted of the exchange of mostly basic information. Even more telling is the fact that the parties came to a settlement agreement in less than two hours.
While there is no question that Waddell is entitled to be compensated for his time, he is not entitled to payment above and beyond the hours that "a reasonable attorney would have incurred and billed in the marketplace under similar circumstances." Caputo, 2004 U.S. Dist. LEXIS 12478, at *10 (quoting Robinson, 160 F.3d at 1281). Here, several of Waddell's entries are vague, simply stating "study, analyze and respond to client's inquiry for a status update," without any indication as to what the updates were in reference to. Dkt. 31, at 1-17.
Furthermore, Waddell's records show that he spent 2.1 hours drafting plaintiff's initial and amended Petition for Damages. Dkt. 31, at 2. However, review of similar filings by Waddell indicates that he uses standard boilerplate language for petitions of this sort, such that at least eighty percent of his pleadings are identical. Furthermore, Waddell indicated that he spent more than three hours responding to defendant's discovery requests, a task that produced, based on the evidence in the record, less than twenty pages of actual discovery. Dkt. 31, at 1-17, 60-71. Moreover, Waddell alleges to have spent 16.5 hours on matters concerning this fee petition alone, which is more than twenty percent of his total number of hours spent. As discussed above, the only reason that the fee petition appears to be so contested is because of Waddell's documented number of hours spent on a case that essentially settled in less than two hours.
In making its determination of Waddell's reasonable number of hours, the court has gone through and identified those documented entries it finds to be excessive, redundant, and vague. After subtracting the 2.90 hours for clerical work, the 12.40 hours more appropriately attributed to paralegal work, and the .30 hours for non-compensable work, 59.60 hours remain. Based on the court's review of the record, and keeping in mind its role of determining "what hours a reasonable attorney would have incurred and billed in the marketplace under similar circumstances," the court finds it reasonable to reduce these hours by twenty percent (20%), to 47.68. See Caputo, 2004 U.S. Dist. LEXIS 12478, at *9 (quoting Robinson, 160 F.3d at 1281). The court must next determine whether Waddell's hourly rate was reasonable.
"When determining the appropriate rate to apply to the reasonable hours, `the district court should base its hourly rate award on what the evidence shows the market commands for . . . analogous litigation.'" United Phosphorus, Ltd., 205 F.3d at 1234 (quoting Case, 157 F.3d at 1255). The moving party bears the burden to show that the requested rates are reasonable, that is, they "are in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation." Ellis v. Univ. of Kan. Med. Ctr., 163 F.3d 1186, 1203 (10th Cir. 1998). "The establishment of hourly rates in awarding attorneys' fees is within the discretion of the trial judge who is familiar with the case and the prevailing rates in the area." Lucero v. City of Trinidad, 815 F.2d 1384, 1385 (10th Cir. 1987) (internal citations omitted).
Here, Waddell seeks an hourly rate of $275 based on his experience in the area of consumer protection law as well as his previous attorney's fees awards in similar cases. Dkt. 28-1, at 21. Waddell also relies upon the affidavit of Wichita attorney N. Russell Hazlewood ("Hazlewood"), who opined that Waddell's hourly rate was reasonable given his experience, reputation, and the fees charged by other, similar attorneys for comparable work in the Kansas City market. Dkt. 28-1, at 27. In response, defendant sets forth case law from throughout the Tenth Circuit that finds that the prevailing market rate for experienced FDCPA attorneys typically ranges between $200 and $250 per hour. Dkt. 29, at 17-18.
Defendant further argues that this court should not take into account Hazlewood's opinion due to his preexisting business relationship with Waddell. Dkt. 29, at 8 n.2. However, given the extreme detail in which Hazlewood discusses Waddell's fees, as well as the information he includes about other lawyers both in the Wichita and Kansas City communities, the court has no concerns with accepting it as an accurate representation of fees charged in consumer protection cases. Therefore, the court finds that the hourly rate of $275 is reasonable.
Therefore, using the lodestar formula, Waddell's attorney's fees are calculated as follows:
Finally, plaintiff seeks an award of $304.96 in costs and fees. Dkt. 36-1, 40-41. The FDCPA grants a successful plaintiff "the costs of the action." 15 U.S.C. § 1692k(a)(3). The court finds plaintiff's request for costs and fees in the amount of $304.96 to be reasonable.
