DAVID STEWART CERCONE, District Judge.
Plaintiff commenced this action seeking redress for the alleged violation of his rights under the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692 et seq. Plaintiff filed notice of acceptance of defendant's second offer of judgment and the Clerk entered judgment against defendant in the amount of $1,501.00, which was exclusive of fees and costs. Presently before the court is plaintiff's petition for fees and costs in the amount of $5,180.25. For the reasons set forth below, the petition will be granted in part and denied in part and an award will entered in the amount of $5,062.25.
Plaintiff filed his complaint on August 10, 2012, alleging defendant's agents engaged in a six month course of conduct that was aimed at persuading plaintiff to pay a consumer debt in the amount of $327.95. The course of conduct involved numerous tactics which allegedly are prohibited under the FDCPA. These included "continuously and repeatedly contact[ing] Plaintiff on his home and cellular telephones, seeking and demanding a payment of [the] alleged debt." Complaint at ¶ 14. These calls became so voluminous that plaintiff began to keep a log of the calls.
Defendant mounts a wholesale attack on every aspect of plaintiff's fee petition. The attack is founded on the general proposition that plaintiff's counsel runs a "volume shop that files thousands of FDCPA cases a year" and in doing so has targeted defendant on the firm's website as a repeated and flagrant violator of the FDCPA. This action purportedly is like many others and reflects nothing more than the generation of a lawsuit on a cookie-cutter assembly line that utilizes cut-and-paste rehashes of work from prior cases to generate exorbitant fees. Against this backdrop defendant asserts that "this action was ultimately resolved for nuisance value" and maintains that both the hourly rates and the amount of time expended are unreasonable under the circumstances. It repeatedly advocates for drastic reductions in all aspects of the requested fees.
Specifically, defendant asserts that plaintiff's counsel seeks to recover hourly rates that are excessive and not in line with local market rates. Counsel purportedly has undertaken to generate fees based on claimed time when in reality many if not all of the filings are "cut-and-paste" submissions that are recycled from prior cases. These submissions required very little editing or tailoring to fit the matter at hand. Counsel also responded to defendant's answer by engaging in premature motions practice, i.e., filing a needless motion to strike defendant's affirmative defenses. It likewise seeks to collect for an unreasonable amount of work devoted to pursuing "fees-on-fees" pursuant to a generic fee petition that has been used in numerous cases nationwide. The claimed entries also seek to recover attorneys fees for administrative, non-legal tasks such as reading the court's electronic notices and orders on such matters as preparing for the initial Rule 16 conference, the court's mandatory ADR program, the court's case management order and so forth. Similarly, plaintiff's counsel have time entries for reading and writing emails as part of communication and task assignment among themselves and paralegals, which includes time by a paralegal preparing "form documents" for filing. Defendant maintains that all of these argued improprieties reveal a course of conduct that warrants the scrutiny of each entry for which plaintiff's counsel seeks to collect to determine if it represents a reasonable fee or cost that should be passed on to defendant.
Plaintiff maintains that the fee petition seeks to recover a reasonable fee for a judgment premised on an admitted violation of federal public policy. He argues that "the idea that [] a consumer protection law firm should be penalized because it has represented many distressed consumers against [a] serial violator of consumer rights can only be described as absurd." In this regard recoveries in the area of consumer protection laws such as the Truth in Lending Act, the Fair Credit Reporting Act and the FDCPA generally are not high dollar amounts and the failure to award a reasonable fee essentially would serve to frustrate the public policies Congress sought to establish and maintain by passing these acts and providing for the recovery of fees upon an established violation thereof.
Moreover, plaintiff's counsel argues that the requested hourly rates are reasonable and have been accepted by other courts. These and very similar rates have been approved by numerous courts and defendant has failed to cite any persuasive authority to show they are excessive. Similarly, plaintiff's counsel asserts that even though tasks and submissions are routine and similar within a particular area of practice, counsel nevertheless have an obligation to review and tailor each template to the specifics of the case and the entries of time within the petition reflect only reasonable amounts of time devoted to just such tasks. Communicating, strategizing and assigning tasks by email is part of today's practice and is not improper or an otherwise unreasonable method for attorneys to litigate a matter and administrative tasks have been highlighted and omitted from the fee petition in any event. Plaintiff's counsel posits that review of the actual entries indicates that each billing entry reflects a very modest entry of time for the task performed. For example, the highest single entry is for 36 minutes consumed to edit the 14 page brief submitted in support of the fee petition; the time log was reviewed for privileged information and appropriate redactions/omissions were made in 24 minutes; a motion for filing was prepared in 12 minutes and so forth. And all filings or undertakings were reasonable and appropriate measures when performed. Thus, plaintiff maintains that the petition should be granted and the requested $5,180.25 should be awarded as a reasonable fee.
The traditional "American Rule" provides that the parties are "ordinarily responsible for their own attorney's fees."
15 U.S.C. § 1692k(a).
In
The lodestar approach was pioneered by the United States Court of Appeals for the Third Circuit in
In order to meet this burden the plaintiff's counsel must present documentation sufficient to justify the fees.
A fee petition is required to be specific enough to allow the district court "to determine if the hours claimed are reasonable for the work performed."
The prevailing party's counsel's failure to maintain records that will enable the reviewing court to calculate a proper award with precision does not preclude an award. Instead, the reliable information is to be taken into account to make a reasonable estimate of the proper division of time.
Against this backdrop, defendant's contention that this action was resolved for "nuisance value" and the court should assess plaintiff's entitlement to fees based on that valuation is misplaced. Plaintiff recovered the full amount for a statutory violation and an additional amount for actual damages. To interpret this recovery as "nuisance value" would essentially be mocking Congress's determination about the value of conduct deemed to be in violation of federal public policy and deeming that determination to be nothing more than an annoyance and irritation to the judicial system. We do not take Congress's determinations of public policy quite so lightly.
Moreover, under § 1692k(a), an award of attorney's fees is not a special or discretionary remedy.
Defendant's contention that the court should look with extreme circumspect on the portion of plaintiff's petition that seeks to recover for the time spent on preparing the fee petition likewise is misplaced. Strong public policy considerations underlie a prevailing party's entitlement to collect fees, including fees-on-fees. In
Defendant's contention that an across-the-boards reduction should be made for all of counsel's time entries because, for example, the 10 page complaint, the motion to strike, and/or the fee petition are "nearly" identical to similar filings by the firm in other cases is unpersuasive. While defendant briefly highlights the total time it attributes to each of these tasks, it does not identify any particular entry or task that reflects an inordinate amount of time devoted to the identified undertaking. The ethical and procedural obligations governing counsel's submissions to the tribunal mandate that counsel exercise caution and strive for accuracy in presenting each submission into the record. Thus, nothing less than an adequate amount of time devoted to verification, tailoring, and editing of standard templates is required and the practitioners before this court are expected to approach their responsibilities with the care and attention to detail needed to meet those responsibilities.
Defendant has not demonstrated that a significant number of time entries are unreasonably excessive or inordinate. The court has reviewed the entries and finds them in general to be reasonable in relation to the tasks undertaken. Consequently, the general reduction defendant seeks appears to invite this court to error on the side of efficiency for defendant's benefit even if it comes at the cost of promoting inaccuracy in what the court and the opposing party receive from counsel. We fail to see the wisdom in such approach or any merit in defendant's complaints on this score.
In addition to its wholesale attacks, defendant specifically challenges the amount of time devoted to 1) a motion to strike defendant's answer, 2) the time devoted to preparing the fee petition, 3) inter-office communications, 4) reviewing electronic notifications reflecting docket entries and 5) billing for menial and administrative tasks. With the exception of the motion to strike, the record indicates that plaintiff's counsels' time entries reflect reasonable amounts of time being devoted to a reasonable task in furthering or resolving the litigation.
The reasonable use of time has long been a central inquiry in the analysis of a fee petition and a matter that is subject to scrutiny by one's opponent and review by the court.
Defendant's complaints concerning the amount of time devoted to the fee petition are unavailing. Defendant challenges the 2.8 hours devoted to preparing the fee petition and supporting brief as unreasonable. But as noted in plaintiff's counsel's reply brief, the most lengthy billing entry entails 36 minutes for revising a 17 page memorandum of law to include the specific factual and procedural information about the case, additional case law, accuracy as to the amounts of time devoted to specific tasks and so forth. A review of the bill to assure no attorney client privileged communications were being disclosed consumed 24 minutes, preparing the actual motion consumed 14 minutes, and revising four form certifications to fit the specifics of the case took 24 minutes. These entries reflect a sufficient level of efficiency in the tasks being performed. The fee petition and supporting submissions are in large measure a compilation of tasks that pertain to case-specific information and tasks. That this information and the related tasks are quite similar to those generated in other standard FDCPA cases does not make them repetitive forms that require very little or no edification.
Defendant's challenge to the billing entries reflecting time devoted to reviewing electronic case filing notifications and docket entries similarly is misplaced. First, contrary to defendant's assertion, the fee invoice reflects a number of entries where "ECF" notices were reviewed by Craig Thor Kimmel and the time was "not billed" due to it being an administrative task.
Defendant's assertion that the fee invoice reflects an excessive amount of time for internal email correspondence among counsel/staff and menial tasks is not sufficiently supported in the record. First, counsel are required to discuss the case, assign tasks among themselves and diligently accomplish those tasks. Using email correspondence to accomplish this is reasonable. In addition, the fee invoice has been edited to remove a significant number of entries that primarily reflect administrative tasks. Further, a review of the entirety of the invoice fails to support defense counsel's assertion that the sheer volume of entries for reading email and menial tasks is excessive and unreasonable. Thus, specific reductions on these grounds is unwarranted.
Finally, a substantial reduction will be made to the 2.8 hours used to edit and file the motion to strike. The time for this motion will not be discounted entirely. Defendant filed an answer that raised a number of highly questionable defenses and at that time there was no understanding among counsel that the case was close to being resolved. Under these circumstances counsel cannot be faulted for taking action that was grounded in sound litigation strategy. Nevertheless, the claimed time for this motion was excessive given that the motion did track almost verbatim the same filing in other cases. Approximately two pages and a paragraph or two were edited to reflect the facts of this case. Otherwise, the template for the motion had to be reviewed to assure its accuracy with the matters at hand. While it appears that the attorney who performed this undertaking may have spent time becoming familiar with the record, such an undertaking is well beyond the review that properly is attributed to preparing the motion. Consequently, the total time will be reduced by 1.5 hours, thus permitting 1.3 hours for the review, drafting of the particulars for the case and assuring the remaining aspects of the template were accurate.
Notwithstanding all of the above, the court will make a general reduction of 10% of the permitted time to capture ineffective use of time, the overlap from counsels' discussions and any administrative activities included within the necessary undertakings by counsel. Such a reduction assures that any actual inefficiency, overlap, redundancy, administrative task by counsel and/or menial task is eliminated from the amount properly billed to and collected from defendant.
Once an appropriate number of hours can be determined, "a reasonable hourly rate is to be calculated according to the prevailing market rates in the relevant community."
Plaintiff's counsel request the following rates: Craig Thor Kimmel — $300.00 per hour; Tara L. Patterson — $250.00 per hour; Amy L. Bennecoff — $200.00 per hour; Joseph L. Gentilcore — $200.00 per hour; Jason Ryan — $110.00 per hour; and Katelyn Fitti — $110.00 per hour. Attorney Kimmel is a founding partner of the law firm Kimmel and Silverman, P.C., and has over 22 years of experience in representing plaintiffs in consumer-based litigation. Attorney Patterson is an associate with 12 years of legal experience which includes 5 years with the Pennsylvania Governor's Office of General Counsel in the State Police Division and 3 years with that office in the Pennsylvania Board of Probation and Parole as assistant counsel. Attorney Bennecoff is a senior attorney with over 7 years of experience that includes experience in personal injury and medical malpractice, land-lord tenant and bankruptcy as well as 5 years of experience primarily handling FDCPA cases in a significant number of jurisdictions. Attorney Gentilcore is an associate who was hired in January of 2011 as a law clerk and became a practicing attorney with the firm in October of 2011. Jason Ryan and Katelyn Fitti are both paralegals.
In support of the proposed rates plaintiff's counsel has submitted a declaration from attorney James M. Pietz that was submitted in a class action brought in this district pursuant to the FDCPA. The action was filed in 2008 and the declaration was submitted to Judge Ambrose on November 14, 2008. Attorney Pietz sought an hourly rate of $410.00 and his co-counsel, attorney Jeffery Suher, sought an hourly rate of $350.00. These rate requests were supported by rates awarded in other class action lawsuits in the Middle District and the Eastern District involving consumer protection claims. The awarded hourly rates reflected ranges from $550.00 for partners to $335.00 for associates in one case and $440.00 for partners to $195.00 for associates in another. Also, the National Law Journal Billing Survey reflected general hourly rates in the Pittsburgh market ranging from a high of $790.00 for a partner to a low of $150.00 for an associate.
Plaintiff's counsel also document their success in obtaining their requested rates in the neighboring districts of the Northern District of Ohio and the Middle District of Pennsylvania, and their obtaining hourly rates mainly above those requested in the Eastern District of Pennsylvania and the District of New Jersey. Finally, they note that similar rates have been sought in a Fair Credit Reporting case and civil rights cases in this district and are well within the ranges employed at the law firm representing defendant.
Defendant cites to
The hourly rates requested by plaintiff's counsel are reasonable and in line with the prevailing market rates in the Pittsburgh market. Defendant essentially seeks a reduction on the premise that Judge Diamond of the Eastern District reduced the Kimmel Law Firm's requested rates to rates consistent with the rates currently requested by the law firm in this district and the Eastern District historically has commanded a higher hourly rate; therefore, the firm's rates should be significantly reduced in the instant manner. What defendant overlooks is the difference between the rates requested in
In light of the above, the following amounts will be awarded.
In addition, costs in the amount of $529.25 and 3 hours for attorney Bennecoff to draft the reply brief in support of the petition for fees will be awarded. This results in an award of $4,533.00 in attorneys fees and $529.25 in costs, for a total award of $5,062.25 (($3,933.00 + $529.25 + $600.00 = $5,062.25).
For the reasons set forth above, plaintiff's petition will be granted in part and an award will be entered in the amount of $5,062.25. An appropriate order will follow.