ANNA J. BROWN, District Judge.
This matter comes before the Court on Plaintiff's Motion (#9) for Attorney Fees and Costs and Plaintiff's Bill of Costs (#11). For the reasons that follow, the Court
On July 10, 2015, Plaintiff filed an action in this Court against Defendant Portfolio Recovery Associates LLC (PRA) alleging Defendant violated the Fair Debt Collection Practices Act, 15 U.S.C. 1692a, et seq., when it attempted to collect a debt "by overstating the amount due" and failed to report Plaintiff's account as disputed on Plaintiff's credit report.
On October 14, 2015, Plaintiff filed a Notice of Acceptance of Defendant's Offer of Judgment in which Plaintiff advised the Court that he had accepted the offer pursuant to Federal Rule of Civil Procedure 68 for $1,001
Notice (#8) at 2 (emphasis added).
Also on October 14, 2015, Plaintiff filed a Motion for Attorney Fees and Costs and a Bill of Costs.
The Court took Plaintiff's Motion and Bill of Costs under advisement on November 17, 2015.
Plaintiff seeks $5,600 in attorneys' fees.
The FDCPA provides in pertinent part:
15 U.S.C. § 1692k(a)(3). The Ninth Circuit has made clear "[t]he FDCPA's statutory language makes an award of fees mandatory [because] congress chose a `private attorney general' approach to assume enforcement of the FDCPA." Camacho v. Bridgeport Fin., Inc., 523 F.3d 973, 978 (9
In addition, pursuant to the Offer of Judgment Defendant agreed to pay Plaintiff's reasonable attorneys' fees and costs. Accordingly, pursuant to § 1692k(a)(3) the Court concludes Plaintiff is entitled to reasonable attorneys' fees and costs in this matter.
The Supreme Court has reiterated under federal fee-shifting statutes such as the FDCPA that "the lodestar approach" is "the guiding light" in determining a reasonable fee. Perdue v. Kenny A., 130 S.Ct. 1662, 1671-73 (2010)(internal quotation omitted). Under the lodestar method, the court first determines the appropriate hourly rate for the work performed and then multiplies that amount by the number of hours properly expended in doing the work. Id. Although "in extraordinary circumstances" the amount produced by the lodestar calculation may be increased, "there is a strong presumption that the lodestar is sufficient." Id. at 1669. The party seeking an award of fees bears "the burden of documenting the appropriate hours expended in the litigation, and [is] required to submit evidence in support of those hours worked." United Steelworkers of Am. v. Ret. Income Plan For Hourly-rated Emps. Of Asarco, Inc., 512 F.3d 555, 565 (9
To determine the lodestar amount the court may consider the following factors:
Fischel v. Equitable Life Assur. Soc'y of U.S., 307 F.3d 997, 1007 n.7 (9
The lodestar amount is presumed to be the reasonable fee, and, therefore, "`a multiplier may be used to adjust the lodestar amount upward or downward only in rare and exceptional cases, supported by both specific evidence on the record and detailed findings by the lower courts.'" Summers v. Carvist Corp., 323 F. App'x 581, 582 (9
Defendant asserts Plaintiff is not entitled to any attorneys' fees incurred in connection with Plaintiff's Motion for Attorney Fees because Plaintiff's counsel, Bret Knewtson, failed to make a good-faith effort to confer regarding his Motion for Attorney Fees before he filed the Motion. Defendant also asserts Plaintiff is not entitled to any attorneys' fees incurred for Knewtson's time researching the Truth in Lending Act.
Plaintiff seeks to recover fees for 4.1 hours spent by Knewtson drafting Plaintiff's Motion for Attorney Fees. Plaintiff certifies in his Motion for Attorney Fees that "[c]ounsel has conferred by email as well as by phone . . . in an attempt to resolve the issue of fees and the parties were not able to agree." Pl.'s Mot. at 1.
As noted, Defendant asserts Plaintiff should not be awarded attorneys' fees incurred in connection with his Motion for Attorney Fees because Knewtson failed to make a good-faith effort to confer regarding the issues in dispute before filing the Motion in violation of Local Rule 7-1(a) and the terms of the Offer of Judgment. Specifically, Defendant notes Plaintiff filed his Notice of Acceptance of Offer of Judgment on October 14, 2015, and less than ten minutes later Knewtson filed Plaintiff's Motion for Attorney Fees. Defendant asserts "[t]he parties simply did not have any chance to discuss [the attorney fee] issue after [Plaintiff] filed his acceptance of the Offer of Judgment" and before Plaintiff filed his Motion.
In his Reply Plaintiff asserts the Offer of Judgment did not include a requirement to confer before filing a Motion for Attorney Fees and he conferred in manner sufficient to satisfy the requirements of Local Rule 7-1 before filing Plaintiff's Motion for Attorney Fees. Specifically, Knewtson states he contacted defense counsel by telephone on September 30, 2015, after Knewtson received Defendant's Offer of Judgment and discussed the Offer. Knewtson points to his time records which show .1 hours to "[c]onfer with [defense counsel] on Offer of judgment [sic] and no fees for fee request if it becomes an issue." Decl. of Bret Knewtson, Ex. 1 at 1. Plaintiff also emailed defense counsel on Monday, October 5, 2015, and noted in pertinent part:
Pl.'s Reply, Ex. 3 at 1. The record does not reflect Defendant responded to Plaintiff's email by October 7, 2015. Plaintiff testifies in his Declaration that on October 13, 2015, one day before Plaintiff accepted and filed the Offer of Judgment, "[d]efense counsel countered with a global offer of $3,750 inclusive of the $1,001 and the $400 court finding fee." Knewtson Decl. at 7 According to Knewtson, therefore, "[t]he parties understood each other's respective positions and no further discussion would change that." Pl.'s Reply at 1-2.
Local Rule 7-1(a) requires every moving party to certify that "the parties made a good faith effort through personal or telephone conferences to resolve the dispute and have been unable to do so." In addition, the Offer of Judgment provides for attorneys' fees "in an amount to be agreed to by counsel or, failing agreement, in an amount to be determined by the Court. Notice (#8) at 2 (emphasis added).
Although Local Rule 7-1 does not explicitly state parties must confer specifically about the subject of the motion to be filed before filing a motion, the language of the Local Rule makes that intention clear. In addition, even if Local Rule 7-1 is unclear as to the timing or specific subject matter that parties must discuss before filing a motion, the Offer of Judgment to which Plaintiff agreed clearly states attorneys' fees are to be agreed to by counsel and only if the parties fail are attorneys' fees to be determined by the Court. All of the contacts regarding attorneys' fees that Plaintiff identifies as conferral occurred before Plaintiff accepted Defendant's Offer of Judgment. In fact, Knewtson specifically stated in his October 5, 2015, email that it was not an acceptance or rejection of the Offer of Judgment. The record, therefore, does not reflect Plaintiff complied with the terms of the Offer of Judgment requiring counsel to attempt to reach an agreement relating to attorneys' fees after Plaintiff accepted the Offer of Judgment.
Accordingly, the Court declines to award Plaintiff the 4.1 hours of attorney time incurred in connection with filing his Motion for Attorney Fees.
Defendant also objects to the time that Knewtson spent researching the Truth in Lending Act (TILA), 16 U.S.C. § 1635, after Defendant had made the Offer of Judgment on September 25, 2015. Specifically, Defendant asserts Knewtson unnecessarily incurred the time because Defendant had made an offer of judgment before September 25, 2015, and because Plaintiff did not bring any claims under TILA.
Plaintiff points out that Defendant served Plaintiff with its Offer of Judgment via mail. Plaintiff states, although Defendant mailed its Offer of Judgment on Friday, September 25, 2015, Plaintiff did not receive the Offer until Wednesday, September 30, 2015. Plaintiff incurred the time researching TILA on Monday, September 28, 2015, before he had received Defendant's Offer.
Plaintiff also points out that Defendant did not advise Plaintiff at any time before September 28, 2015, that it was going to make an Offer of Judgment and, therefore, Plaintiff did not know such an offer was likely. The Court agrees it was not unreasonable for Plaintiff to continue to conduct research reasonably related to this matter until he received Defendant's Offer of Judgment on September 30, 2015.
Defendant also asserts it was unreasonable for Plaintiff to spend any time researching TILA because Plaintiff brought only FDCPA claims in this matter. Plaintiff concedes he did not bring a TILA claim, but he asserts TILA is relevant because it
Knewtson Decl. at 6. In other words, Knewtson researched TILA in order to understand the rights of the original creditor to charge interest in this matter because Defendant did not have any greater right under the FDCPA to charge interest on Plaintiff's account than the original creditor. One of Plaintiff's FDCPA claims was based on an assertion that Defendant "overstat[ed] the amount due" on Plaintiff's account and that claim rested on Defendant charging Plaintiff interest when it did not have a right to do so under the FDCPA.
The Court concludes on this record that it was not unreasonable for Knewtson to spend time on September 28, 2015, researching TILA. Accordingly, the Court declines to reduce Plaintiff's attorneys' fees for that research.
Knewtson requests fees at an hourly rate of $350. Defendant contends this rate is unreasonably high and asserts the Court should award fees to Plaintiff at an hourly rate no higher than $300.
To determine the reasonable hourly rate this Court uses the most recent Oregon State Bar Economic Survey published in 2012 as its initial benchmark. Attorneys may argue for higher rates based on inflation, specialty, or any number of other factors.
In his Declaration in support of Plaintiff's Motion Knewtson states he has practiced in Oregon since 2003, has represented numerous debtors in FDCPA and other debt-collection matters, and has had significant successful litigation at state and federal levels. In addition to his practice experience, Knewtson has taught bankruptcy, debt defense, and unlawful debtcollection seminars for the Washington and Multnomah County Bar Associations, for consumer-law groups, and for the Oregon State Consumer Law Section. Knewtson has also authored recent changes to the Oregon State Bar Consumer Law Barbooks chapters on the Oregon Unlawful Debt Collections Practices Act and the Fair Credit Billing Act. Knewtson has served in every official capacity on the Oregon State Bar Consumer Law Executive Committee and serves as the local Chair of the Oregon National Association of Consumer Law Attorneys.
The Court notes the 2012 Economic Survey conducted by the Oregon State Bar reflects the average billing rate for attorneys in Tri-County area of Oregon with 12 years of experience in 2012 was $221 and the 75% billing rate was $258. Knewtson asserts his rate should be higher because he has substantial expertise in FDCPA, bankruptcy, and other debtcollection matters. In fact, Knewtson points out that this Court and other judges in this district have found $300 per hour to be a reasonable rate for him in other FDCPA actions. See, e.g., Salzer Griggs Assoc., No. 3:11-CV-00007-BR, Opin. and Order (#46); Campista v. Cred. Fin. Group LLC, No. 3:13-CV-00640-SI, 2014 WL 127083, at *3 (D. Or. Jan. 13, 2014). Knewtson asserts a rate of $350 per hour is reasonable because that is the rate of the 95th percentile of attorneys practicing business and corporate litigation in the Tri-County area. As Defendant points out, however, this matter involved a relatively uncomplicated civil-litigation issue rather than a complicated issue of business or corporate litigation, and, therefore, the 95% corporate litigation rate is inappropriate. The Court agrees.
On this record the Court concludes, in the exercise of its discretion, an hourly rate of $300 is reasonable.
In summary, the Court awards attorneys' fees to Plaintiff in the amount of
Plaintiff requests costs in the amount of $400.00 comprised of the fee to file this action. Defendant does not object to Plaintiff's requested costs.
Absent a showing of circumstances not relevant here, an award of costs is governed by federal law. See Champion Produce, Inc. v. Ruby Robinson Co., Inc., 342 F.3d 1016, 1022 (9
28 U.S.C. § 1920 allows a federal court to tax specific items as costs against a losing party pursuant to Federal Rule of Civil Procedure 54(d)(1). Section 1920 provides:
Costs generally are awarded to the prevailing party in a civil action as a matter of course unless the court directs otherwise. Fed. R. Civ. P. 54(d). The court must limit an award of costs to those defined in 28 U.S.C. § 1920 unless otherwise provided for by statute. Grove v. Wells Fargo Fin. Ca., Inc., 606 F.3d 577, 579-80 (9
Accordingly, the Court awards costs to Plaintiff in the amount of
For these reasons, the Court
IT IS SO ORDERED.
