Filed: Mar. 05, 2013
Latest Update: Mar. 28, 2017
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-2258 DANIELLE RANDLE, Plaintiff - Appellee, v. H&P CAPITAL, INCORPORATED; GARY ROBERT HENRION; NOEL LOUIS POOLER, Defendants – Appellants, and MS. ROBERTS, Defendant. Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. Robert E. Payne, Senior District Judge. (3:09-cv-00608-REP) Submitted: November 27, 2012 Decided: March 5, 2013 Before MOTZ, KING, and WYNN, Circuit Judges. Dismiss
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-2258 DANIELLE RANDLE, Plaintiff - Appellee, v. H&P CAPITAL, INCORPORATED; GARY ROBERT HENRION; NOEL LOUIS POOLER, Defendants – Appellants, and MS. ROBERTS, Defendant. Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. Robert E. Payne, Senior District Judge. (3:09-cv-00608-REP) Submitted: November 27, 2012 Decided: March 5, 2013 Before MOTZ, KING, and WYNN, Circuit Judges. Dismisse..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-2258
DANIELLE RANDLE,
Plaintiff - Appellee,
v.
H&P CAPITAL, INCORPORATED; GARY ROBERT HENRION; NOEL LOUIS
POOLER,
Defendants – Appellants,
and
MS. ROBERTS,
Defendant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Robert E. Payne, Senior
District Judge. (3:09-cv-00608-REP)
Submitted: November 27, 2012 Decided: March 5, 2013
Before MOTZ, KING, and WYNN, Circuit Judges.
Dismissed in part; affirmed in part by unpublished per curiam
opinion.
Steven R. Dunn, Dallas, Texas, for Appellants. Dale W. Pittman,
LAW OFFICE OF DALE W. PITTMAN, P.C., Petersburg, Virginia; Owen
Randolph Bragg, HORWITZ, HORWITZ & ASSOCIATES, Chicago,
Illinois, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
H&P Capital, Incorporated (“H&P”), Gary Robert
Henrion, and Noel Louis Pooler appeal the district court’s award
of attorney’s fees in this litigation brought by Danielle Randle
pursuant to the Fair Debt Collection Practices Act (“FDCPA”),
15 U.S.C.A. §§ 1692–1692p (West 2009 & Supp. 2012), and the
Florida Consumer Collections Practices Act (“FCCPA”), Fla. Stat.
§§ 559.55–559.785 (2010). We dismiss the appeal in part and
affirm in part.
As an initial matter, counsel for Henrion has filed a
suggestion of death, informing us of Henrion’s death during the
pendency of the appeal. We have informed the known survivor of
the decedent and counsel for the parties of the need for
substitution if the survivor or any personal representative of
the decedent’s estate desires the further prosecution of the
appeal. Counsel and the survivor have not informed us of any
such desire. Accordingly, pursuant to Fed. R. App. P. 43(a), we
dismiss the appeal as to Henrion. Crowder v. Hous. Auth. of
Atlanta, 908 F.2d 843, 846 n.1 (11th Cir. 1990); Gamble v.
Thomas,
655 F.2d 568, 569 (5th Cir. Unit A Aug. 1981).
Appellants H&P and Pooler, however, continue to prosecute the
appeal, and we turn now to their challenges to the district
court’s fee award.
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Randle’s complaint alleged that H&P, Henrion, Pooler,
and a Defendant identified as Ms. Roberts violated the FDCPA by
leaving messages on her answering machine and telephone
voicemail that failed to inform her the communications were from
a debt collector and falsely implied that legal action had been
taken and by willfully engaging in other conduct that could
reasonably be expected to “abuse or harass.” Randle brought the
action on her own behalf and on behalf of three classes of
Virginia residents who received similar messages from
Defendants. She sought certification of the action as a class
action, declaratory relief under the FDCPA, injunctive and
declaratory relief under the FDCPA and FCCPA, statutory damages
under the FDCPA and FCCPA, and attorney’s fees, expenses, and
costs under both acts. Prior to any class certification,
however, the case settled. The parties agreed that Defendants
would pay Randle $6,000 “in full and final settlement of all of
her claims,” plus attorney’s fees incurred to prosecute her
individual claims.
Counsel for Randle subsequently submitted requests for
attorney’s fees and costs totaling $89,083.69. See 15 U.S.C.A.
§ 1692k(a)(3) (mandating the payment of reasonable attorney’s
fees and costs to a successful consumer under the FDCPA). The
district court referred the request to a magistrate judge
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pursuant to 28 U.S.C.A. § 636(b)(1)(A) (West 2006 & Supp. 2012).
The magistrate judge recommended that the district court award
Randle $85,966.59 in fees and costs. The district court
sustained Defendants’ objection to the recommended award of
attorney’s fees to O. Randolph Bragg -- one of the two attorneys
who represented Randle in the proceedings below -- in the amount
of $9,090.00, adopted the recommendation except as to that
recommended fee, and awarded Randle $76,876.59 in attorney’s
fees and costs.
“It is for the district court in the first instance to
calculate an appropriate award of attorney’s fees.” Carroll v.
Wolpoff & Abramson, 53 F.3d 626, 628 (4th Cir. 1995).
“On appeal, this court has a duty to affirm an attorney’s fee
award which falls within the district court’s broad discretion.”
Id. (internal quotation marks and alteration omitted).
As the district court recognized, its discretion in
awarding attorney’s fees is guided by the twelve factors first
set forth in Johnson v. Ga. Highway Express, Inc., 488 F.2d 714,
717-19 (5th Cir. 1974), and adopted by this court in Barber v.
Kimbrell’s, Inc.,
577 F.2d 216, 226 (4th Cir. 1978). The Barber
factors include such considerations as the time and labor
required, the difficulty of the issues litigated, customary fees
in similar situations, and the results obtained. These factors,
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however, “usually are subsumed within the initial calculation of
hours reasonably expended at a reasonable hourly rate[, i.e.,
the lodestar].” Hensley v. Eckerhart, 461 U.S. 424, 434 n.9
(1983). “When . . . the applicant for a fee has carried his
burden of showing that the claimed rate and number of hours
[expended] are reasonable, the [lodestar] is presumed to be the
reasonable fee contemplated” by the statute. Blum v. Stenson,
465 U.S. 886, 897 (1984). The FDCPA, however, “does not mandate
a fee award in the lodestar amount,” and the district court
maintains the discretion to depart from it in appropriate
circumstances. Carroll, 53 F.3d at 629.
The district court in this case explained its
rationale for awarding the attorney’s fee, discussing relevant
Barber factors in concluding that Randle’s counsel expended a
reasonable number of hours and in calculating a reasonable
hourly rate for their services. Appellants argue that the
district court abused its discretion in awarding attorney’s fees
because the award fails to account for Randle’s lack of success
on her class claims and efforts to obtain non-monetary relief. *
We reject this argument.
*
As part of this argument, Appellants also argue that the
district court erred by failing to “properly” consider the
theory of proportionality and in failing to conduct an
“analysis” of the claims on which Randle failed and the claim on
which she prevailed in awarding attorney’s fees. Appellants,
(Continued)
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The Supreme Court has noted generally that “the most
critical factor in determining the reasonableness of a[n]
[attorney] fee award is the degree of success obtained.” Farrar
v. Hobby, 506 U.S. 103, 114 (1992) (internal quotation marks
omitted) (observing that a nominal damages award bears on the
propriety of fees awarded pursuant to 42 U.S.C. § 1988 (2006)).
Our precedents demonstrate that a “district court may decrease
the amount of fees that might otherwise be awarded in order to
account for the plaintiff’s limited success.” McDonnell v.
Miller Oil Co., Inc.,
134 F.3d 638, 641 (4th Cir. 1998) (citing
cases). Randle’s recovery in this case, however, was not
nominal. Indeed, she was highly successful, settling “all of
her claims” for $6,000, six times the maximum recovery amount
permitted for individual actions under the FDCPA, 15 U.S.C.A.
§ 1692k(a)(2)(A), and the district court’s fee award accounts
for the work performed by Randle’s attorneys in pursuing this
successful outcome. Insofar as Appellants may be advancing an
argument that evaluates the relative importance of the kinds of
relief sought by Randle as a basis for overturning the district
however, do not explain what a “proper” consideration would have
entailed or how such an “analysis” would have aided the district
court in this case. Moreover, it is clear from the record that
the district court considered the fact that the parties agreed
that Defendants would pay attorney’s fees incurred to prosecute
Randle’s individual claims.
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court’s fee award, we reject their effort. See Mercer v. Duke
Univ., 401 F.3d 199, 205 (4th Cir. 2005) (holding that courts
evaluating the degree of success on the merits between
successful and unsuccessful claims should not attempt to
determine what the plaintiff would have thought the more
important form of relief).
We also reject as meritless Appellants’ challenges
based on Randle’s attorneys’ evaluation of her case and the lack
of any need for the participation of attorney Bragg. The
challenge regarding the attorneys’ evaluation of Randle’s case
is unexplained and not supported by any evidence of record.
Further, Appellants’ arguments regarding attorney Bragg fail to
explain in any principled fashion how the district court abused
its discretion in awarding fees for his work in this case.
Finally, we reject as wholly without merit Appellants’ argument
that the district court abused its discretion in failing to
“significantly reduce” -- by an unspecified figure -- the
attorney fee awarded in this case on the bases that Randle did
not prevail on her claims and her attorneys’ allegedly
“excessive” billing.
Accordingly, we dismiss the appeal in part and affirm
the district court’s judgment in part. We dispense with oral
argument because the facts and legal contentions are adequately
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presented in the materials before this court and argument would
not aid the decisional process.
DISMISSED IN PART;
AFFIRMED IN PART
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