ANDREW J. PECK, United States Magistrate Judge:
Presently before the Court are the motions of plaintiffs Lucille Ryan and Meagan Henning for attorneys' fees and costs from defendant Allied Interstate, Inc., pursuant to plaintiffs' acceptance of Allied's Offers of Judgment and 15 U.S.C. § 1692k(a)(3), which allows successful plaintiffs to recover reasonable attorneys' fees and costs. (Ryan Dkt. No. 20 & Henning Dkt. No. 15: Notices of Motion; Ryan Dkt. No. 21: Ryan Br. at 1; Henning Dkt. No. 16: Henning Br. at 1.)
Ryan's complaint alleged that Allied violated the Fair Debt Collection Practices Act ("FDCPA") by "[h]arassing, oppressing or abusing Plaintiff ... by calling Plaintiff repetitively" and "[u]sing unfair or unconscionable means to collect" a disputed debt. (Ryan Dkt. No. 1: Ryan Compl. ¶ 19.) Henning's complaint alleged that Allied violated the FDCPA by "repeatedly plac[ing] harassing debt collection calls to Plaintiff's cellular and work telephones," "falsely [telling] Plaintiff that they were calling from the Federal Government," and "reveal[ing] Plaintiff's social
Ryan and Henning accepted Allied's Rule 68 Offers of Judgment to each plaintiff, which provided:
(Ryan Dkt. No. 15 & Henning Dkt. No. 12: Notices of Acceptance of Offers of Judgment.)
The parties failed to reach agreement on the amount of attorneys' fees and costs. (Ryan Br. at 4; Henning Br. at 4.) Ryan seeks $6,964.00 for attorneys' fees and costs. (Ryan Br. at 5.) Henning seeks $7,938.56 for attorney's fees and costs. (Henning Br. at 4.) The parties have agreed to decision of this case by a Magistrate Judge pursuant to 28 U.S.C. § 636(c). (Ryan Dkt. No. 14 & Henning Dkt. No. 11: § 636(c) Consent.)
For the reasons set forth below, the Court awards Ryan $2,795.00 in attorneys' fees and $377.06 in costs, and awards Henning $3,342.50 in attorneys' fees and $350.00 in costs.
The FDCPA provides for recovery of reasonable attorneys' fees and costs. See 15 U.S.C. § 1692k(a)(3); accord, e.g., Jacobson v. Healthcare Fin. Servs., Inc., 516 F.3d 85, 95 (2d Cir.2008) ("The FDCPA provides for fee-shifting as a matter of course to successful plaintiffs...."); Woods v. Sieger, Ross & Aguire, LLC, 11 Civ. 5698, 2012 WL 1811628 at *5 (S.D.N.Y. May 18, 2012).
As the fee applicant, plaintiffs "bear[] the burden of documenting the hours reasonably spent by counsel, and the reasonableness of the hourly rates claimed." Gen. Elec. Co. v. Compagnie Euralair, S.A., 96 Civ. 0884, 1997 WL 397627 at *4 (S.D.N.Y. July 3, 1997) (Scheindlin, D.J. & Peck, M.J.).
Traditionally, "[i]n determining a fee award, the typical starting point is the so-called lodestar amount, that is `the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate.'" Healey v. Leavitt, 485 F.3d 63, 71 (2d Cir.2007) (citing Hensley v. Eckerhart, 461 U.S. at 433, 103 S.Ct. at 1939).
In April 2010, the Supreme Court revisited the issue of attorneys' fees and approved of the "lodestar" approach over the more discretionary approach of Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir.1974), holding:
Ryan requests $6,537.00 in attorneys' fees, as follows:
Name Position Hourly Rate Hours Spent Fee Craig Thor Kimmel Partner $425 9.5 $4037.50 Amy L. Bennecoff Associate 300 6.0 1800.00 Jacob U. Ginsburg Associate 225 2.0 450.00 Dawn N. Grob Paralegal 165 0.4 66.00 Katelynn Fitti Paralegal 165 0.1 16.50 Jason Ryan Paralegal 155 0.2 31.00 Pete Keltz Paralegal 80 1.7 136.00 TOTAL $6,537.00
(Ryan Dkt. No. 21: Ryan Br. at 5-7; Ryan Dkt. No. 22: Ryan Fees & Costs.)
Henning requests $7,484.50 in attorneys' fees, as follows:
Name Position Hourly Rate Hours Spent Fee Craig Thor Kimmel Partner $425 10.9 $4,632.50 Amy L. Bennecoff Associate 300 6.5 1,950.00 Jacob U. Ginsburg Associate 225 3.3 742.50 Jason Ryan Paralegal 155 0.1 15.50 Pete Keltz Paralegal 80 1.8 144.00 TOTAL $7,484.50
(Henning Dkt. No. 16: Henning Br. at 4-6; Henning Dkt. No. 17: Henning Fees & Costs.)
Plaintiffs' two-partner law firm, Kimmel & Silverman, P.C., is located in Ambler, Pennsylvania. (Ryan Dkt. No. 23: Kimmel Aff. ¶ 4; Henning Dkt. No. 18: Kimmel Aff. ¶ 4.) Partner Craig Thor Kimmel has an "abundance of experience in the consumer law field," Brass v. NCO Fin. Sys., Inc., No. 11-CV-1611, 2011 WL 3862145 at *4 (E.D.Pa. July 22, 2011), report & rec. adopted, 2011 WL 3862069 (E.D.Pa. Aug. 31, 2011), but "his FDCPA experience is recent." Zavodnick v. Gordon & Weisberg, P.C., No. 10-7125, 2012 WL 2036493 at *5 (E.D.Pa. June 6, 2012). (See also Ryan Dkt. No. 23 & Henning Dkt. No 18: Kimmel Aff. ¶ 3: "[M]y primary focus for the last several years has been the FDCPA....") The firm's arrangement with plaintiffs is a "hybrid, both a contingency fee and a fee-shift," with the defendant compensating the Kimmel firm if plaintiffs prevail. (Ryan Dkt. No. 23 & Henning Dkt. No. 18: Kimmel Aff. ¶ 18.)
The Second Circuit's "forum rule" generally requires courts to "use the hourly rates employed in the district in which the reviewing court sits in calculating the presumptively reasonable fee." Simmons v. N.Y.C. Transit Auth., 575 F.3d 170, 174 (2d Cir.2009) (quotations omitted), accord, e.g., Arbor Hill Concerned Citizens Neighborhood Ass'n. v. Cnty. of Albany, 522 F.3d 182, 183-84, 190-93 (2d Cir.2008). Moreover, a lawyer's hourly rate is based, in part, on overhead costs such as rent for office space, and other "local" conditions. To the extent the reasonable hourly rate for an out-of-district lawyer is less than the billing rate in the district where the court sits, the lower rate should apply. In other words, the appropriate billing rate should be the rate where the attorney works or the forum rate, whichever is lower. See Arbor Hill Concerned Citizens Neighborhood Ass'n v. Cnty. of Albany, 522 F.3d at 191 n. 8 ("Were a strict forum rule the settled law of this circuit, we could not have used a lower hourly rate than the hourly rate prevailing in the district where the district court sat to calculate the presumptively reasonable fee in Crescent Publishing [Group, Inc. v. Playboy Enters., Inc., 246 F.3d 142 (2d Cir.2001)]. See also Sands v. Runyon, 28 F.3d 1323, 1333-34 (2d Cir.1994) (permitting district court to consider retainer agreement in setting hourly rate below prevailing hourly rate in the district)...."); Davis Cnty. Solid Waste Mgmt. & Energy Recovery Special Serv. Dist. v. EPA, 169 F.3d 755, 759 (D.C.Cir.1999) ("[W]e find the use of home market rates is preferable when the home market is substantially less costly and the site of the bulk of the legal work because it produces a result that better reflects the purpose of fee shifting statutes.").
District Courts in Pennsylvania and New Jersey have rejected the Kimmel firm's billing rates in prior FDCPA cases. E.g., Zavodnick v. Gordon & Weisberg, P.C., 2012 WL 2036493 at *5-6 (awarding $290 per hour for Kimmel, $200 per hour for Bennecoff, $175 per hour for a junior associate and $100 per hour for paralegals); Conklin v. Pressler & Pressler LLP, No. 10-3566, 2012 WL 569384 at *5 (D.N.J. Feb. 21, 2012) ("[T]he Court will adopt the following hourly rates: Mr. Kimmel ($325 per hour); Ms. Bennecoff ($250 per hour); ... Mr. Ryan ($125 per hour);... Ms. Grob ($125 per hour); Mr. Ginsburg ($125); ..."); Freid v. Nat'l Action Fin. Servs., Inc., No. 10-2870, 2011 WL 6934845 at *7 (D.N.J. Dec. 29, 2011) ("[T]he Court will adopt Defendant's proposed hourly rates as follows: Craig T. Kimmel, Esq. ($305.00 per hour); Amy L. Bennecoff, Esq. ($215.00 per hour); ... and Jason Ryan ($95.00 per hour). The Court will also reduce the hourly rate of IT personnel Jeff Ehrmann and Jacob Ginsburg from $150.00 per hour and $200.00 per hour, respectively, to $75.00 per hour and $80.00 per hour."); Cassagne v. Law Offices of Weltman, Weinberg & Reis Co., LPA, No. 11-2791, 2011 WL 5878379 at *6 (D.N.J. Nov. 23, 2011) ("[T]the following hourly rates will apply: attorney Kimmel ($325); attorney Bennecoff
The hourly rates sought by the Kimmel firm also are inconsistent with rates approved in this district for FDCPA litigation.
Prior cases in this District have approved fees of $200-$300 per hour in FDCPA cases, and prior decisions about Kimmel have rejected his request for $425 per hour and awarded rates of $290-$325 to Kimmel (and $200 to $250 to Bennecoff). (See cases cited above.) The prior decisions note that the Kimmel firm's "rates and hours have been substantially and repeatedly reduced by Courts...." Zavodnick v. Gordon & Weisberg, P.C., 2012 WL 2036493 at *2; accord, e.g., Conklin v. Pressler & Pressler LLP, 2012 WL 569384
This Court is troubled that the Kimmel firm continues to seek $425 per hour for Kimmel (and $300 per hour for Bennecoff, etc.) despite numerous decisions rejecting those rates — and without even citing those decisions in its briefs. Moreover, there is no evidence that any of the Kimmel firm's clients pay its so-called "regular" hourly billing rates in FDCPA cases — the rates appear to exist for the purpose of charging defendants, such as Allied, under the FDCPA fee shifting provisions. While higher hourly rates may be appropriate in hotly contested FDCPA cases, these two cases involved early settlements — of $500 — via accepted Rule 68 Offers of Judgment, and did not involve complex factual or legal issues. Accordingly, the Court allows the following hourly rates: $300 per hour for Kimmel, $225 for Bennecoff, $175 for Ginsburg, and $100 for paralegals Ryan, Grob and Fitti (and $75 for Keltz).
In determining whether the amount of hours billed is reasonable "the court takes account of claimed hours that it views as `excessive, redundant, or otherwise unnecessary.'" Bliven v. Hunt, 579 F.3d 204, 213 (2d Cir.2009) (quoting Hensley v. Eckerhart, 461 U.S. 424, 434, 103 S.Ct. 1933, 1939-40, 76 L.Ed.2d 40 (1983)). "In so doing, `the district court does not play the role of an uninformed arbiter but may look to its own familiarity with the case and its experience generally as well as to the evidentiary submissions and arguments of the parties.'" Bliven v. Hunt, 579 F.3d at 213. "The critical inquiry is `whether, at the time the work was performed, a reasonable attorney would have engaged in similar time expenditures.'" Cesario v. BNI Constr., Inc., 07 Civ. 8545, 2008 WL 5210209 at *7 (S.D.N.Y. Dec. 15, 2008) (quoting Grant v. Martinez, 973 F.2d 96, 99 (2d Cir.1992)), report & rec. adopted, 2009 WL 424136 (S.D.N.Y. Feb. 19, 2009).
Allied objects to the hours spent by the Kimmel firm on two main grounds. First, Allied argues that the amount of hours should be reduced because "the Kimmel Firm repeatedly seeks to recover for administrative, non-legal tasks performed by Mr. Kimmel and Ms. Bennecoff, its highest billing rate personnel on this case." (Ryan Dkt. No. 28: Allied Opp. Br. at 12; see also Henning Dkt. No. 24: Allied Opp. Br. at 12.) Second, Allied objects to the hours billed based on the "`repetitive nature of [Kimmel & Silverman's] FDCPA practice and boilerplate nature of the pleadings submitted in this action.'" (Ryan Dkt.
Plaintiffs cannot recover for time spent by attorneys completing administrative tasks. See E.S. v. Katonah-Lewisboro Sch. Dist., 796 F.Supp.2d 421, 431-32 (S.D.N.Y.2011) ("A court may make [across-the-board percentage] reductions when attorneys engage in less skilled work, like filing and other administrative tasks [such as] ... faxing and mailing documents, making copies, filing, scanning, preparing documents for electronic filing, electronic file management, binding documents, and Bates stamping."), aff'd, 487 Fed.Appx. 619, 2012 WL 2615366 (2d Cir. 2012); Nat'l Audubon Soc'y, Inc. v. Sonopia Corp., 09 Civ. 0975, 2010 WL 3911261 at *5 (S.D.N.Y. Sept. 1, 2010) ("[A]dditional set-offs are necessary to account for the time spent on such less-skilled work [such as] ... completion of the civil cover sheet, review of ECF procedures, and meeting with court clerks to discuss order to show cause and default judgment procedures."), report & rec. adopted, 2010 WL 5373900 (S.D.N.Y. Dec. 22, 2010); Tucker v. City of N.Y., 704 F.Supp.2d 347, 356 (S.D.N.Y. 2010) ("A further problem is found in a number of entries that reflect attorneys performing work that can be done by a clerical person or at most a paralegal. This includes such work as the copying and mailing of pleadings or other documents, the Bates-stamping of documents, the filing of papers, and the service of pleadings. The plaintiff's application seeks to charge full attorney rates for these services, a demand that is indefensible." (record citations & fn. omitted)).
The case law also makes clear that the Court may reduce the fees requested for billing entries that are vague and do not sufficiently demonstrate what counsel did. See, e.g., Carrasco v. W. Vill. Ritz Corp., 11 Civ. 7843, 2012 WL 2814112 at *7 (S.D.N.Y. July 11, 2012) (Peck, M.J.) (reducing attorney's hours where "some of the billing entries are vague and the time spent excessive"); Gordon v. Site 16/17 Dev., LLC, 11 Civ. 0427, 2011 WL 3251520 at *5 (S.D.N.Y. July 28, 2011) (Peck, M.J.) ("When time records reflect vague and duplicative entries, and entries for attorneys performing ministerial tasks, the Court may order a reduction in attorneys' fees." (citing cases)); VFS Fin., Inc. v. Pioneer Aviation, LLC, 08 Civ. 7655, 2009 WL 2447751 at *5 (S.D.N.Y. Aug. 11, 2009) (Peck, M.J.) ("Having reviewed [plaintiff's] attorneys' time sheets, the Court believes that a number of [plaintiff's] attorneys' billing entries are overly vague or duplicative, and that a percentage fee reduction therefore is appropriate."); J.S. Nicol, Inc.
The Court has carefully reviewed the Kimmel firm's billing entries in both cases, and finds that many of the entries are not compensable. For example, in both cases, Kimmel — the highest billing lawyer — repeatedly billed for reviewing ECF entries. While that cannot be totally characterized as "administrative," it could easily have been done by a lower-billing lawyer. Moreover, Kimmel has several entries of 0.1 (six minutes) on the same day for review of ECF emails, thus inflating the time spent. For example, in the Ryan case, on January 25, 2012, Kimmel has four separate 0.1 entries for review of the following ECF notifications: complaint filed, summons was issued, case designated ECF, and what judges the case was assigned to. Similarly, on April 5, 2012, Kimmel has three entries of 0.1 each for reviewing ECF notifications for the three notices of appearance for Allied's lawyers. Similar billing entries appear in the Henning case. The Court deducts all of the "ECF" related entries from Kimmel's time, reducing his time in Ryan by 2.3 hours and Henning by 1.8 hours. The Court also reduces Kimmel's hours for excessive internal emails, especially those lacking detail (such as email Ginsburg re complaint) and work that should have been done by lower-billing lawyers, resulting in a further reduction of 1.7 hours for Kimmel in Ryan and 2.3 hours in Henning. In total, the Court reduces Kimmel's hours in Ryan from 9.5 hours to 5.5 hours, and in Henning from 10.9 to 6.8 hours.
Similarly, based on the Court's review of billing entries reflecting vague or other improper entries, the Court reduces Bennecoff's hours in Ryan by 2.5 hours to 3.5 hours and in Henning by 3.1 hours to 3.4 hours. Associate Ginsburg's hours are reduced by 0.5 hours in Ryan and by 0.5 hours in Henning. Paralegal hours also need to be reduced, as follows: Paralegals Grob, Fitti and Ryan are reduced by 0.2 hours in Ryan and paralegal Keltz's hours are reduced by 1.1 hours in Ryan and 1.3 hours in Henning.
The Court notes that while Allied complains of the boilerplate nature of the Kimmel firm's filings, review of the billing entries does not support the implication that the Kimmel firm is charging in numerous cases for doing the same work. Rather, the complaints and fee applications in these cases could be prepared in so little time because of the work that the Kimmel firm had "in the can" from prior cases. If a different firm had to perform all the research and drafting from scratch, its bills would have been much higher.
Plaintiffs' attorneys will be compensated for the Ryan case as follows:
Name Position Hours Allowed Rate Fee Craig Thor Kimmel Partner 5.5 $300 $1650.00 Amy L. Bennecoff Associate 3.5 225 787.50 Jacob U. Ginsburg Associate 1.5 175 262.50 Dawn N. Grob Paralegals 0.5 100 50.00 Katelynn Fitti 100 Jason Ryan 100 Pete Keltz Paralegal 0.6 75 45.00 TOTAL $2.795.00
Name Position Hours Allowed Rate Fee Craig Thor Kimmel Partner 6.8 $300 $2,040.00 Amy L. Bennecoff Associate 3.4 225 765.00 Jacob U. Ginsburg Associate 2.8 175 490.00 Jason Ryan Paralegal 0.1 100 10.00 Pete Keltz Paralegal 0.5 75 37.50 TOTAL $3,342.50
Plaintiff Ryan requests $427.00 in costs for filing the complaint ($350.00) and counsel's travel expenses to a conference in New York ($77.00). (Ryan Dkt. No. 21: Ryan Br. at 24; Ryan Dkt. No. 22: Ryan Fees & Costs.) Plaintiff Henning requests $454.06 in costs for filing the complaint ($350.00), counsel's travel expenses to a conference in New York ($77.00) and a transcript fee ($27.06). (Henning Dkt. No. 16: Henning Br. at 24; Henning Dkt. No. 17: Henning Fees & Costs.) The Court awards the filing fee and transcript costs, but denies travel-related expenses. Allied is a company with a national presence, and counsel's travel expenses are a result of plaintiffs' choice to litigate these cases in the Southern District of New York while being represented by a firm based in Ambler, Pennsylvania.
Accordingly, the Court awards Ryan $377.06 and Henning $350.00 for costs.
For the reasons set forth above, the Court awards plaintiff Ryan $2,795.00 in attorneys' fees and $377.06 in costs, for a total of $3,172.06. The Court awards plaintiff Henning $3,342.50 in attorneys' fees and $350.00 in costs, for a total of $3,692.50. The Clerk of Court shall enter judgments accordingly and close these cases.
SO ORDERED.
