AMY BERMAN JACKSON, United States District Judge.
Pending before the Court is the Report and Recommendation issued by Magistrate Judge Deborah A. Robinson granting in part plaintiff's two motions for attorney's fees and costs for work completed in furtherance of plaintiff's successful claim under the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. § 1692 et seq. Report & Recommendation (Oct. 24, 2014) [Dkt. # 45]. Both parties objected to the Report and Recommendation. Def.'s Objections to Report & Recommendation [Dkt. # 46] ("Def.'s Objections"); Pl.'s Objections to Report & Recommendation [Dkt. # 47] ("Pl.'s Objections"). After considering the Report and Recommendation and the parties' filings, in light of the applicable standard, the Court will adopt the Report and Recommendation in its entirety. The Court will therefore grant plaintiff's motions for attorney's fees in part and will deny them in part, and will enter judgment for fees in the amount of $41,989.80, plus post-judgment interest.
The underlying litigation centers on plaintiff's claim that defendant engaged in harassing and deceptive debt collection practices in violation of the FDCPA, 15 U.S.C. § 1692 et seq., the District of Columbia Debt Collection Law (DCDCL), D.C.Code § 28-3814 et seq., and the District of Columbia Consumer Protection Procedures Act, D.C.Code § 28-3901 et seq. See Compl. [Dkt. # 1]. On February 7, 2014, after the parties briefed defendant's motion to dismiss, plaintiff accepted defendant's Rule 68 offer of judgment as to plaintiff's federal claim only. Pl.'s Notice of Acceptance of Def.'s Rule 68 Offer of Judgment [Dkt. # 11]. The Clerk of Court entered judgment in plaintiff's favor "in the amount of $1,001.00 plus costs and expenses together with reasonable attorney fees for all claims under the Fair Debt Collection Practices Act." Judgment on Offer & Acceptance [Dkt. # 14].
Plaintiff then filed a motion pursuant to 15 U.S.C. § 1692k(a)(3) seeking $442.95 in costs and $155,700.00 in attorney's fees for 346 hours of work on plaintiff's successful FDCPA claim at the "prevailing market rate" of $450.00 per hour. Pl.'s Mot. for Award of Att'y's Fees and Costs [Dkt. # 15] at 2; Pl.'s Mem. in Supp. of Mot. for Award of Att'y's Fees and Costs [Dkt. # 15] ("Pl.'s 1st Fee Mot.") at 12. Pursuant to Local Civil Rule 72.2, the Court referred the matter to a magistrate judge for preparation of a report and recommendation. Order Referring Mot. for Att'y's Fees (Mar. 24, 2014) [Dkt. # 18]. Defendant opposed plaintiff's fee motion, arguing that plaintiff's fees were "grossly and intolerably exaggerated," and requested that the Court deny plaintiff's request in its entirety. Def.'s Opp. to Pl.'s 1st Fee Mot. [Dkt. # 20] ("Def.'s 1st Fee Opp.") at 1. Plaintiff subsequently requested additional fees for drafting and filing her reply to defendant's opposition, bringing her fee request to $195,332.00
In July 2014, the Court granted in part and denied in part defendant's motion to dismiss, leaving only two of plaintiff's claims under the DCDCL intact and dismissing the remainder of plaintiff's state law claims. Order (July 8, 2014) [Dkt. # 26]; Mem. Op. (July 8, 2014) [Dkt. # 27]. In August 2014, defendant filed a motion for relief from judgment pursuant to Federal Rule 60(b)(5), arguing that the FDCPA judgment had been satisfied. Def.'s Mot. for Relief from J. [Dkt. # 34]. Plaintiff opposed the motion. Pl.'s Opp. to Def.'s Mot. for Relief from J. [Dkt. # 37]. The Court denied defendant's motion and noted that:
Order (Sept. 11, 2014) [Dkt. # 41] at 2. The Court then permitted plaintiff "to amend her motion for attorney's fees only to include the fees incurred in connection with her opposition to defendant's motion for relief [from judgment], but not her proposed surreply." Id. at 2-3.
In response to the Court's order, plaintiff submitted an amendment to her original fee request, seeking an additional $19,440.00 for 43.20 hours expended in responding to defendant's motion for relief from judgment. Amendment to Pl.'s 1st Fee Mot. [Dkt. # 42] ("Pl.'s 2nd Fee Mot."). Defendant opposed plaintiff's amended request, despite the fact that it was explicitly permitted by the Court, and again argued that plaintiff's fee award should be eliminated or drastically reduced because "[t]he time claimed by the Plaintiff reflects `grossly excessive hours.'" Def.'s Resp. to Pl.'s Supp. Fee Petition [Dkt. # 43] ("Def.'s 2nd Fee Opp.") at 2, quoting Bell v. Prefix, Inc., 784 F.Supp.2d 778, 783 (E.D.Mich.2011). Plaintiff, after professing to be "perplexed" by defendant's filing and considerate of the Court's admonition to stop "cluttering the docket," nevertheless filed a six-page reply to defendant's two-page opposition, and requested an additional $5,940.00 for the 13.20 hours spent drafting that document. Pl.'s Reply to Def.'s 2nd Fee Opp. [Dkt. # 44].
After considering the parties' many pleadings, Magistrate Judge Robinson issued a Report and Recommendation on October 24, 2014, recommending that plaintiff's initial fee request of $195,332.00 be reduced by eighty-five percent because: (1) the hours requested for drafting and filing the complaint, the opposition to defendant's motion to dismiss, and the fee petition were significantly more than would reasonably be required for that amount of work, Report & Recommendation at 8-9; (2) plaintiff included in her request hours expended on the District of Columbia law claims, on which plaintiff did not prevail, id. at 9; (3) "some of the hours [plaintiff] expended had no purpose in the context of the status of this action" because the work was performed after defendant had already offered to accept judgment on the FDCPA claims, id. at 9-10;
Pursuant to Federal Rule of Civil Procedure 72(a) and Local Rule 72.2, a court may refer nondispositive matters, including the award of attorney's fees, to a Magistrate Judge for resolution.
The Court begins with defendant's objections to the Report and Recommendation. As a threshold matter, defendant incorrectly argues that the Court should review the Report and Recommendation de novo. See Def.'s Objections at 3; Def.'s Resp. to Pl.'s Objections [Dkt. # 51] at 1-3.
However, even if defendant had properly framed its objections as assertions of clear error, defendant's arguments would not warrant modifying the Report and Recommendation. Defendant first urges the Court to deny plaintiff's fee award altogether on the grounds that the "initial fee petition is shockingly unreasonable" and that the supplemental fee petition is similarly "excessive and should shock the conscience of this Court." Def.'s Objections at 3, 8. In support of its claim, defendant offers the following arguments: that it is within the Court's discretion to deny plaintiff any fee award where the request is so outrageous that it "shocks the conscience," id. at 3-4, 8; that other district courts have completely denied fees for "far less egregious" requests, id. at 4-7; and that the Report and Recommendation "failed to consider the expert testimony of Melvin Hirshman, former Bar Counsel for the state of Maryland" on this point. Id. at 7.
Not one of these allegations leaves the Court "`with the definite and firm conviction that a mistake has been committed,'" Ambush, 794 F.Supp.2d at 129, quoting Fed. Savs. & Loan, 130 F.R.D. at 508, simply because the Magistrate Judge awarded any fees at all. Neither the fact that a court may — but is not compelled to — exercise its discretion and decline to award fees where a request is "outrageously unreasonable," nor the fact that other courts have completely denied fee requests in other cases, warrants a finding of clear error here. The cases cited by defendant permit, but do not mandate, rejecting an award outright and therefore cannot show that the Magistrate Judge's recommendation on that point was an abuse of discretion or clearly erroneous.
"Ultimately the court has `broad discretion in deciding whether attorney
Additionally, the fact that the report "failed to consider the expert testimony of Melvin Hirshman," who "examined the pleadings and motions in this case and opined that the ... hours claimed by Plaintiff's counsel are `excessive and shocking,'" Def.'s Objections at 7 (citations omitted), is hardly grounds for rejecting the Report and Recommendation. The Magistrate Judge engaged in an independent review of the pleadings and motions, including specific time entries on plaintiff's counsel's time sheets, in reaching the eighty-five and fifty percent reductions she applied to plaintiff's fees. See Report & Recommendation at 8-11. A determination of the reasonableness of an attorney fee request — an issue which is squarely and singularly committed to the court's discretion — is not the type of "scientific, technical, or other specialized" area of inquiry that would require an expert to "help the trier of fact to understand the evidence or determine a fact in issue." Fed.R.Evid. 702(a). The Magistrate Judge's decision not to rely on Mr. Hirshman's testimony is therefore not clear error.
The Court also notes that defendant's issues with the number of hours claimed by plaintiff are, at least in part, a result of defendant's own actions. Duplicative and unnecessary filings by defendant, especially the motion for relief from judgment and the objection to plaintiff's court-approved supplemental fee request, required plaintiff to expend additional time and effort in responding and drove up the number of hours sought in the fee petitions. See generally Order (Sept. 11, 2014) at 2. To deny plaintiff any fees whatsoever would reward defendant's contentious behavior, which the Court will not do. Defendant's objections on that ground are therefore overruled.
In the alternative, defendant asks the Court to reduce the hourly rate for plaintiff's counsel from $450 to $175 per hour. Def.'s Objections at 9-11. But the problem with this challenge to the Magistrate Judge's Report and Recommendation is that defendant never once objected to the $450 hourly rate when it was requested by plaintiff in her first fee motion, see generally Def.'s 1st Fee Opp., or to that rate when it was requested by plaintiff in
"`[I]t would be fundamentally unfair to permit a litigant to set its case in motion before the magistrate, wait to see which way the wind was blowing, and — having received an unfavorable recommendation — shift gears before the district court.'" Aikens v. Shalala, 956 F.Supp. 14, 23 (D.D.C.1997), quoting Paterson-Leitch Co. v. Mass. Mun. Wholesale Elec. Co., 840 F.2d 985, 991 (1st Cir.1988). Defendant failed to contest the reasonableness of plaintiff's hourly rate before the Magistrate Judge, and this Court will not now consider that untimely objection. See id. ("[T]his court will not consider `an argument which could have been, but inexplicably was not, presented' to the Magistrate Judge in the first instance."), quoting Paterson-Leitch, 840 F.2d at 991. In any event, the Court cannot find that it was clear error for the Magistrate Judge to accept the Laffey matrix rate of $450.00 per hour for plaintiff's counsel's work where defendant offered no alternative rate in opposing the fee motions.
In sum, defendant has not shown that the Magistrate Judge's findings are clearly erroneous or contrary to law. For that reason, the Court will overrule defendant's objections.
Plaintiff's submissions are not a significant improvement over defendant's when it comes to the standard of review; indeed, plaintiff invites the Court to apply both the clear error and de novo tests. See Pl.'s Objections at 4. While plaintiff raises a host of objections to the Report and Recommendation, she also falls short of identifying any clear errors that would warrant rejecting the Magistrate Judge's findings.
Plaintiff first asserts that the Magistrate Judge erred in reducing the fee award on the grounds that plaintiff's counsel engaged in unproductive, wasteful, and duplicative activity.
In fact, the Court finds that the roughly 93 hours' worth of work for which the report recommends compensating plaintiff far more accurately reflects what would be expected for a reasonable attorney to complete those various filings. The reductions here are reasonable and plaintiff was awarded a quite generous portion of her requested fees in comparison to similarly situated prevailing parties. See, e.g., Beasley v. Red Rock Fin. Servs., LLC, 583 Fed.Appx. 138, 141, 143 (4th Cir.2014) (finding no abuse of discretion where trial court reduced fee request of $52,120.00 to an award of $5,000.00 based on the limited statutory damages the plaintiff had recovered under the FDCPA); Savino, 71 F.Supp.2d at 174, 177 (reducing the plaintiff's fee request of more than $34,000 to an award of $3,675.00 in FDCPA action). Plaintiff benefits from the clear error standard here, and her objection on that ground will therefore be overruled.
Plaintiff further argues that the Magistrate Judge erred in reducing plaintiff's fee award for time spent on the District of Columbia claims on which plaintiff did not prevail. Pl.'s Objections at 5, 7-9. Plaintiff contends that she is entitled to "seek reimbursement for such claims as said claims are based on the same common nucleus of operative facts as the FDCPA claims."
Plaintiff further maintains that the Magistrate Judge erred in reducing plaintiff's fee award for hours expended in drafting and filing submissions that were "unnecessarily enlarge[d] with sharp attacks" on the opposing party. Pl.'s Objections at 9-11; see also Report & Recommendation at 10, quoting Minute Order (Feb. 11, 2014). Plaintiff cites no law for her assertion that it was clear error for the Magistrate Judge — in exercising her broad discretion in awarding fees — to apply a percentage reduction to plaintiff's fee award based on the volume of unproductive and wasteful activity that violated an explicit order to be respectful in pleadings filed before the Court. She variously argues that the Court's order only prohibited attacks on opposing counsel, not on the opposing party; that the order did not apply to the fee motions; and that "reasonable minds may differ as to whether" plaintiff's comments directed at the opposing party constituted "sharp attacks." Pl.'s Objections at 9-10. None of these arguments supports a finding of clear error.
Plaintiff was twice unambiguously directed to refrain from unfounded and hyperbolic attacks on her opponent,
Finally, plaintiff argues that the Magistrate Judge erred in concluding that the FDCPA does not mandate a fee award in the lodestar amount. Pl.'s Objections at 12-16. Plaintiff argues that "the lodestar method is appropriate" in the fee-shifting context, id. at 12, that it is "the established method" for calculating such fees, id. that it is the "prevailing method of fee calculation," id. at 13, and that it "is the appropriate method" for determining fees. Id. at 16. The fact that the lodestar method is usually the proper approach to determining fees does not conflict with the Magistrate Judge's statement that it is not mandatory in the FDCPA context where circumstances justify a departure from the lodestar amount. Although no court in this circuit appears to have squarely addressed the issue, the Court finds the Fourth Circuit's analysis persuasive on this point:
Carroll, 53 F.3d at 629, quoting Hensley, 461 U.S. at 436-37, 103 S.Ct. 1933; accord Dowling v. Litton Loan Servicing LP, 320 Fed.Appx. 442, 446 (6th Cir.2009) ("[I]f the plaintiff has achieved only partial success, the award may be adjusted as necessary to achieve a reasonable result."); Thornton v. Wolpoff & Abramson, L.L.P., 312 Fed. Appx. 161, 164 (11th Cir.2008) (finding no abuse of discretion where the "district court reduced the lodestar amount by 85% in the light of the nominal amount of the statutory damages award that [plaintiff] received" under FDCPA).
The Magistrate Judge did not commit clear error when she followed the guidance of the Supreme Court and the Fourth Circuit in declining to award plaintiff the full lodestar amount under circumstances where "the product of hours reasonably expended on the litigation ... times a reasonable hourly rate" resulted in "an excessive amount" in light of the "only partial or limited success" attained by plaintiff's counsel on plaintiff's claims. Hensley, 461 U.S. at 436, 103 S.Ct. 1933; see also Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich LPA, 559 U.S. 573, 598 & n. 16, 130 S.Ct. 1605, 176 L.Ed.2d 519 (2010) (noting that "courts have discretion in calculating reasonable attorney's fees" under the FDCPA, and that while "[m]any District Courts apply a lodestar method," those courts "permit[ ] downward adjustments in appropriate circumstances"). Plaintiff's objection on this point is therefore overruled.
The Court concludes that plaintiff has failed to demonstrate that the Magistrate Judge's recommendations are clearly erroneous or contrary to law. For that reason, the Court will overrule plaintiff's objections.
Defendant also objects to the Magistrate Judge's recommendation that plaintiff be awarded $442.95 in costs, and argues that costs have already been paid to plaintiff along with the judgment of $1,001.00 in plaintiff's favor. Def.'s Objections at 12, citing Report & Recommendation at 11. Defendant has indeed presented plaintiff
The parties did not object to the Report and Recommendation's award of post-judgment interested to plaintiff. Accordingly, the Court will adopt that section of the report in its entirety.
Plaintiff requests compensation for an additional 63 hours of time spent researching and drafting the objections to the Magistrate Judge's report, Pl.'s Objections at 17, and for 44.1 hours for researching and drafting plaintiff's response to defendant's objections. Pl.'s Resp. to Def.'s Objections [Dkt # 49] at 2. Because these requests do not in any way relate to the success of plaintiff's FDCPA claim, or to the opposition to defendant's motion for relief from judgment for which the Court authorized plaintiff to seek fees, the Court finds that these requests are "too attenuated from the adjudication of the ... complaint to be reimbursable." Wright v. District of Columbia, 883 F.Supp.2d 132, 134 (D.D.C.2012). Granting plaintiff an additional $48,195.00 for objecting to the Magistrate Judge's generous recommendation that plaintiff be awarded $41,989.80 is simply not warranted. Plaintiff's request for reimbursement for these additional fees is therefore denied.
The Court finds that neither plaintiff nor defendant has demonstrated that the Magistrate Judge committed clear error or that the Report and Recommendation was contrary to law. Therefore, the Court will adopt the Report and Recommendation in its entirety. As a result, the Court will grant plaintiff's motions for attorney's fees in part and will deny them in part, and will enter judgment for fees in the amount of $41,989.80, plus post-judgment interest. A separate order will issue.
