Memorandum Granting in Part and Denying in Part Plaintiff's Motion for Attorney's Fees and Costs (ECF No. 51)

J. MARK COULSON, District Judge.

I. BACKGROUND

The underlying claim in this matter involves Defendants' alleged failure to comply with their support obligations pursuant to 8 U.S.C. § 1183(a) and its implementation regulations, 8 C.F.R. Part 213a, after sponsoring the immigration of Plaintiff, a family member from South Africa to the United States. Those obligations, crystalized in Immigration Form I-864, require that the immigration sponsor support the immigrant at 125% of poverty level (currently $21,137 per year or $1761.42 per month) if he or she cannot do so alone, until one of five terminating events has taken place, none of which has occurred.1 Plaintiff brought suit on March 7, 2019 claiming that his immigration sponsors failed to so maintain him at various times since he became a lawful permanent resident in 2015. (ECF No. 1.)

Shortly after filing suit, on May 29, 2019, Plaintiff obtained a preliminary injunction from this Court ordering Defendants to pay a fixed monthly amount of $61.42 pending the resolution of the case based on a snapshot of Plaintiff's financial situation at that time. (ECF No. 38). In so doing, the Court agreed that Plaintiff had established a likelihood of ultimately prevailing on the merits, although both past arrearages and future support obligations were strongly contested. (Id).

On June 5, 2019, the parties presented for a settlement conference before me. Ultimately, Defendants agreed to pay $21,250, with $9,475 earmarked to settle all claims of past liability, and the remaining $11,750 as a "credit" against future support obligations.2 (ECF No. 52-2 at pp. 98-109). Beyond the future support credit, the settlement agreement did not otherwise impair Plaintiff's ability to seek damages in the future to the extent Defendants were delinquent (i.e., Plaintiff was not releasing Defendants from any future I-864 support obligations). However, Defendant would agree to apply the $11,750 credit towards those obligations, fully preserving his ability to seek further support payments beyond that amount. (Id. at p. 101). As for attorney's fees and costs, the parties agreed to consent to my jurisdiction, brief the issue, and have me render a binding determination. (Id).

II. LEGAL STANDARD

Title 8 of the United States Code 1183a(c) provides for the "payment of legal fees and other costs of collection" among the remedies for successful enforcement of I-864 obligations. See Younis v. Farooqui, 597 F.Supp.2d 552, 554 (D. Md. 2009) (noting sponsor "may also be liable for legal fees and costs of collection"). The Fourth Circuit utilizes a so-called "lodestar" analysis. McAfee v. Boczar, 738 F.3d 81, 88 (4th Cir. 2014). First, a court must arrive at the lodestar figure by multiplying the number of reasonable hours expended by a reasonable hourly rate. Id. In determining reasonableness of both hours and rate, the court must consider twelve "reasonableness" factors.3 Id. Next, the court must subtract fees for unsuccessful claims unrelated to successful ones. Id. Finally, the court should award some percentage of the remaining amount, depending on the degree of success enjoyed by the plaintiff. Id.

In this case, Plaintiff seeks a base amount of fees and costs of $45,775.31 reflecting approximately 125 hours of work and modest costs, and a multiplier of 1.5 pursuant to the lodestar analysis set forth above. Defendants challenge this based on two chief arguments. First, Defendants allege that Plaintiff was not forthcoming with certain financial information that might have justified an offset to the amount sought, delaying resolution of the case. Second, Defendants contend that the degree of success obtained by Plaintiff was minimal in comparison to what was sought, as reflected in the preliminary injunction award of $61.42 per month. The Court begins its analysis below.

A. Reasonableness of Hours Expended

When considering the total number of hours expended, the Court employs factors one, two, and seven. In doing so, the Court finds that the roughly 125 hours are largely reasonable4 under the circumstances, after a review of the detail provided by Plaintiff's counsel both in terms of individual time entries and then in the "stage of litigation" format as required by this Court's Local Rule, Appendix B. (ECF No. 51-2 at pp. 11 et seq). In addition to the usual tasks, i.e., investigating the claim, researching the law and drafting initial pleadings and discovery, Plaintiff also filed a successful preliminary injunction and participated in a successful mediation session. The "novelty and difficulty" factor cuts both ways. On the one hand, this type of litigation is uncommon and somewhat esoteric, which generally requires additional research by the average attorney approaching this subject for the first time. On the other, given Counsel's expertise in this subject area, Counsel was in advantageous position to leverage his expertise in order to address the issues in the case, as he has done in many previous cases. (ECF No. 51-2 at pp. 1-2 and 140). The time entries, in the Court's view, demonstrate that those efficiencies were obtained. As for factor seven—urgency—it is true that the circumstances of a plaintiff arguing for monetary support might provide urgency, but there is no showing that this particular situation was more urgent than any other. This was partially evidenced by Judge Bredar's award of only a modest amount of monthly support in the preliminary injunction order, a reasonable assessment of Plaintiff's financial condition at that snapshot in time. (ECF No. 38).

The Court does note that Plaintiff was unsuccessful in his motion to strike some of Defendant's affirmative defenses. Accordingly, the Court will deduct 5.91 hours. Additionally, the Court notes that on June 5, 2019, Plaintiff's counsel billed 5 hours for travel from Baltimore back to his office in Seattle, Washington. However, he also billed 8.09 hours for that very same travel (which included 45 minutes spent beginning the settlement agreement draft and 4.25 hours preparing a draft of the attorney fee petition). Therefore, the Court will deduct the first 5-hour entry as duplicative.

Defendants' argument as to the hours spent is that Plaintiff and his counsel's behavior inordinately protracted what otherwise could have been a prompt settlement of the case by masking Plaintiff's true financial situation (which, in turn, would have allegedly mitigated Defendants' support obligation). This is not supported by the record. To be sure, financial information informally exchanged between the parties pre-suit, and various affidavits and information exchanged post-suit makes it unlikely that Plaintiff would have recovered full statutory damages due to likely mitigation. But it is hardly uncommon in litigation that a party's initial broad assertions in a complaint regarding damages go unchallenged during litigation.

Additionally, the pre-suit settlement correspondence exchanged evidences efforts by Plaintiff's counsel to narrow the items in dispute. Further, it included his candid acknowledgment that Defendants' past and present support obligations might well be mitigated by factors such as any earnings by Plaintiff and further evidence of past material support from Defendants. Those efforts are detailed below.

The correspondence detailed above leads the Court to three conclusions. First, establishing the precise amount due for past support was still in flux at the time suit was filed. Still, Plaintiff's counsel acknowledged that Defendants might well be entitled to some credit against their past support and future support obligations based both on wages earned by Plaintiff and material support provided by Defendants. Some efforts were made to provide documentation towards that determination (and requesting documentation from Defendants verifying support they contend they provided).

Second, Plaintiff's counsel acknowledged that Plaintiff had some earnings during the disputed period, and presently, and attempted to quantify those. Plaintiff's counsel recognized that Plaintiff was presently in housing provided by an acquaintance (from which Defendants ultimately argued a further credit was justified). Plaintiff's counsel provided a reasonable framework for determining present support obligations: providing documentation of Plaintiff's salary each month and then having Defendants pay any shortfall.

Finally, Defendants communicated their suspicions that they might be due further credits, but nonetheless communicated a settlement offer consisting of no money for past support, rather only a lump sum of $20,947 for future support (with a waiver of all additional future claims for support). This offer was ultimately rejected.

At the end of their pre-suit discussions, the parties were at a crossroads: (1) spend more time and effort attempting to further quantify the precise amounts owed (with the accompanying fees and costs attendant to that effort); or (2) forego further mathematical precision and mutually agree to a compromise. Neither choice was unreasonable based an analysis of the correspondence above. Thus, the Court finds no bad faith or delay by either side in these initial efforts that would undercut the reasonableness of the number of hours claimed.

Having reached an impasse, the parties proceeded with the litigation. Because Defendants resisted any voluntary agreement regarding payment of support while suit was pending, it was not unreasonable for Plaintiff to seek a preliminary injunction, an effort that was ultimately successful. Defendants make much of the fact that in his Preliminary Injunction ruling, Judge Bredar found that Defendants were largely meeting their support obligation in light of Plaintiff's earnings at that time, coupled with an offset for the below-market housing and utilities that Plaintiff was receiving.5 Further, Defendants attempted to undermine Plaintiff's credibility at the hearing on that motion by, inter alia, pointing out inconsistencies between Plaintiff's initial declaration in support of his motion and a supplemental declaration. Defendants extrapolate from that finding, based on a snapshot of the disputed period, that their support obligation could never have been more than that, making all of Plaintiff's negotiating positions and claims to the contrary disingenuous. The Court disagrees.

Judge Bredar's assessment found that based on present income of about $100/month in odd jobs, $800 in "under the table" pay, and a housing/utility offset of another $800, an award of $61.42/month would preserve the status quo pending the outcome at trial. It in no way established that, for example, in 2017 or 2018, Plaintiff's situation was the same. While it certainly would not have precluded Defendants from arguing that Plaintiff's inconsistencies and present income determination should preclude an award of damages at trial, it similarly would not have precluded Plaintiff from presenting his own evidence at trial that his current situation was precarious and unsustainable. Thus, the parties were again at a crossroads: spend more time and effort pursuing these respective lines of argument, or again attempt a compromise, using whatever leverage either possessed to try and extract favorable terms from the other. As before, neither choice would have been unreasonable, but they are mutually exclusive.

The parties re-initiated settlement discussions within days of that May 30, 2019 decision. This resulted in a full and final settlement at the Court-mediated settlement conference on June 5, 2019, less than three months after suit was filed, ultimately memorialized in a fully-executed written settlement agreement on June 10, 2019. Presumably, in agreeing to settle, the parties assessed their respective arguments, the chances that those arguments would be successful in continued litigation/trial, and the cost of advancing those arguments, and found compromise to be the better choice. Accordingly, the Court does find any behavior on behalf of Plaintiff (or Plaintiff's counsel) that would lead it to reduce fees on such basis beyond the adjustments the Court noted above.

B. Reasonableness of Rates

In assessing the reasonableness of the rates charged per hour factors three, four, five, six, nine, eleven, and twelve are potentially relevant. In considering the skill required for this type of case, as noted, this is an esoteric area of the law with not many reported decisions, such that finding a lawyer with the requisite skill and experience would be relatively difficult. Similarly, the experience, reputation and ability factor is easily met when considering Plaintiffs' counsels' affidavit (ECF No. 51-2 at pp. 1-9), C.V.s (Id. at 120-34), and testimony from other lawyers (Id. at 140). Because of the relative rarity of these cases, a "customary fee" is difficult to establish, although the Court is generally assisted by its own fee schedule found in Appendix B of the Local Rules. Similarly, there is not enough of a database to establish "awards in similar cases" to a great degree. Counsel's expectations regarding outcome are addressed in Counsel's affidavit—while establishing the statutory duty is relatively predictable—it is not uncommon to be successful on the merits yet be met with a defendant with little or no ability to satisfy a judgment or claim for fees. (Id. at pp. 8-9). The Court does not regard the "preclusion of other employment" or "length of relationship between attorney and client" as particularly relevant in this analysis. While it is true, as counsel argues, that representing plaintiffs likely limits—and may even exclude— representing defendants in similar litigation (ECF No. 51-1 at pp. 14-15), that is a business choice that counsel has made. As for length of relationship, Plaintiff hired counsel specifically to pursue this claim with no prior history, and this particular matter was concluded within six months of the pre-suit demand.

Mr. McLawsen's rate of $400 per hour exceeds this Court's range for someone of his experience (ten years). This Court's Local Rule, Appendix B, sets forth that for a lawyer with 9-14 years of experience the approved rate is between $225 and $350 per hour. Though Mr. McLawsen's level of experience falls towards the lower end of that range, his subject matter expertise is extensive, and no doubt resulted in efficiencies, as seen in the number of total hours expended in this case. The Court's above analysis of the twelve "reasonableness" factors also justifies an award in the upper end of the range. As a result, the Court will approve a rate at the top of that range-$350 per hour for Mr. McLawsen. (His co-counsel's rate is in accordance with Appendix B and will not be adjusted).

C. Degree of Success Obtained

This brings the Court to the most important factor—the degree of success obtained—that will guide its analysis as to whether an upward or downward adjustment to the lodestar is justified. McAfee 738 F.3d at 88-9 (citing Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542 (2010)).

Defendants point to the relatively small monthly amount of $61.42 ordered by Judge Bredar as part of the preliminary injunction as the measuring rod for "success" by which Plaintiff's fee petition should be judged. As the Court noted above, however, if this amount fairly captured the monthly deficit at the time of the preliminary injunction hearing in May of 2019, it did not take into account any past arrearages nor any anticipated change in Plaintiff's financial situation going forward, which Plaintiff characterized as precarious for various reasons.6 Plaintiff's claims consisted both of past amounts due and potential future liability, neither of which Judge Bredar addressed conclusively.

Defendants' assertion that informal discovery and investigation undermined some of Plaintiff's claims regarding his past and current financial status might well have had some impact on Plaintiff's ability to recover damages at trial. But it also might have been the case that Plaintiff would lose his job and housing during the course of litigation, or that Plaintiff would convince the Court to reconsider its imputation of housing/utilities, entitling him to a much bigger monthly award at trial. But the parties elected not to engage in full discovery and not to go to trial. Instead, the parties voluntarily negotiated a settlement, presumably after considering these arguments and the relative strengths and weaknesses of their respective cases should they elect to continue the litigation. In the Court's view, Plaintiff's results cannot be subject to the speculation of what might have happened should litigation have continued, but instead must be assessed on the relief Plaintiff ultimately obtained in the settlement process.

Using that measuring rod, it is clear the Plaintiff achieved reasonable success. Defendants assert that the settlement amount of $21,225 was not materially more than the $20,212.94 Defendants offered on February 28, 2019. It must be remembered, however, that Defendants' February 28 proposal offered no money for past support due, and that the settlement offer of $20,212.94 was a one-time lump sum payment cutting off any future support obligation (i.e., a waiver by Plaintiff of any future support). In the settlement Plaintiff ultimately obtained $9,475 was allocated for past amounts due, and the remaining $11,750 was to be credited against future support obligations, which Plaintiff was free to pursue. (ECF No. 51-2 at p. 101). In other words, although Defendants were granted a limited credit for future support payments, Plaintiff otherwise completely preserved his ability to seek that support into the future. Plaintiff made the reasoned decision to put a meaningful sum in his pocket today by presently foregoing (yet preserving for the future) potential payments for future support (less the small credit of $11,750 against such future obligations). Further, although the amount of the preliminary injunction was nominal, Plaintiff established useful precedent for future plaintiffs litigating similar claims.7

In sum, while the balance of factors does not favor an enhancement, they do support the fees and costs claimed, subject only to the following adjustments:

The Court Orders Plaintiff's counsel to recalculate the fees sought accordingly, with the recalculated fee bill submitted to the Court and Defendants. Once the bill is so submitted the recalculated fees and the costs should be paid within 60 days, unless Plaintiff and Defendants mutually agree to an alternative payment schedule.