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Kathy Scott v. Niagara Credit Solutions

March 6, 2012


The opinion of the court was delivered by: William M. Skretny Chief Judge United States District Court


1. Plaintiff, Kathy Scott, filed this action against Defendant, Niagara Credit Solutions, Inc., ("Niagara"), on January 30, 2009, seeking redress for alleged violations of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. ("the FDCPA"). On April 12, 2011, Plaintiff accepted Defendant's Offer of Judgment for $3,001.00 pursuant to Rule 68 of the Federal Rules of Civil Procedure. (Docket No. 29.) Two months later, on May 10, 2011, Scott moved for attorney fees. That motion is presently before this Court. (Docket No. 33.) Also before this Court, described in more detail below, is Plaintiff's motion relating to a dispute between the parties concerning payment of the agreed-upon judgment award. (Docket No. 39.) For the following reasons, Plaintiff's attorney-fee motion is granted and its "judgment-payment" motion is denied.

2. Considering the attorney-fee motion first, under the governing statute, "[a] consumer who brings a successful FDCPA lawsuit can recover 'the costs of the action, together with a reasonable attorney's fee as determined by the court.'" Savino v. Computer Credit, Inc., 164 F.3d 81, 87 (2d Cir. 1991) (quoting 15 U.S.C. § 1692k(a)(3)). Scott is the successful party in this litigation, and Defendant does not contest Plaintiff's entitlement to an award of attorney's fees and costs, but instead contests the reasonableness of those fees.

3. In Arbor Hill Concerned Citizens Neighborhood Ass'n v. County of Albany, 493 F.3d 110 (2d Cir.2007), amended on other grounds by, 522 F.3d 182 (2d Cir. 2008), the Second Circuit "undertook to simplify the complexities surrounding attorney's fees awards that had accumulated over time" in the circuit and district courts. Simmons v. N.Y.C. Transit Auth., 575 F.3d 170, 174 (2d Cir. 2009). In particular, the court sought to reconcile the "lodestar" method of determining fees (the product of the attorney's usual hourly rate and the number of hours billed, subject to adjustment based on case-specific considerations to arrive at a "reasonable fee"), with the method developed in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir.1974), which considered twelve specific factors to arrive at the "reasonable fee". Arbor Hill, 493 F.3d at 114. "Relying on the substance of both approaches, [the Second Circuit] set forth a standard that [it] termed the 'presumptively reasonable fee.'" Simmons, 575 F.3d at 174. District courts now are directed to set a reasonable hourly rate, bearing in mind all the case-specific variables the Second Circuit and other courts have identified as relevant to the reasonableness of attorney's fees, and then use the reasonable hourly rate to calculate a "presumptively reasonable fee." Arbor Hill, 493 F.3d at 117.

4. To arrive at that fee, district courts must also consider the twelve Johnson factors: (1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the level of skill required to perform the legal service properly; (4) the preclusion of employment by the attorney due to acceptance of the case; (5) the attorney's customary hourly rate; (6) whether the fee is fixed or contingent; (7) the time limitations imposed by the client or the circumstances; (8) the amount involved in the case and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the "undesirability" of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases. 488 F.2d at 717-19.

5. Plaintiff seeks a total judgment for fees and costs in the amount of $22,025.00. This is based on 88.1 hours of attorney time billed at an hourly rate of $250 per hour and $827.50 in costs. (Goldstein Declaration, ¶ 25; Docket No. 33-1.)

Niagara argues that the expenditure of time claimed in this case is excessive and raises several specific objections. Niagara seeks to limit the fee award because: (1) Plaintiff did not obtain recovery for the putative class, which she initially sought to represent; (2) Plaintiff's entries include clerical tasks; (3) entries are duplicitive; (4) time should be excluded after the acceptance of the offer; (5) the hourly rate is unreasonable;

(6) generally, Plaintiff's attorney took too long to perform certain tasks; and (7) mediation fees are not taxable costs.

Considering the Johnson factors, this Court has carefully reviewed Plaintiff's motion and Niagara's opposition and determined that Plaintiff's fee should be reduced.

6. First, Niagara argues that much of the time expended in this case related to the class certification issue and that, because a class was never certified and there was no class recovery, the time spent in discovery and mediation should be reduced. This Court agrees as only the time expended in effecting recovery for Kathy Scott is properly recovered. See 15 U.S.C. § 1692k(a)(3); see also Hensley v. Eckerhart, 461 U.S. 424, 440, 103 S. Ct. 1933, 76 L. Ed. 2d 40 (1983) ("[T]he extent of a plaintiff's success is a crucial factor in determining the proper amount of an award of attorney's fees."). Discovery, related motions and mediation accounted for 33.1 hours. Niagara contends that all this time should be eliminated. But this Court finds that request to be too extensive and will instead reduce the time by half, to 16.5 hours. This Court finds that this reduced figure is a more reasonable representation of the hours necessary for discovery, motions, and mediation given the relatively straightforward nature of the case, and the labor and skill required to prosecute a commonplace FDCPA claim. See Johnson, 488 F.2d at 717-19 (factors one through three).

7. Second, this Court will reduce counsel's claim for what appears to be clerical work. Niagara objects to these entries and Plaintiff does not respond to those objections. This accounts for .4 hours from June 16 and July 20, 2009, .1 hour on October 1, 2009, and .5 hour from April 3, January 4, and January 5, 2009. This totals 1.0 hour.

8. Third, pursuant to the settlement agreement, no time is taxable after Plaintiff accepted the offer of settlement, which was entered on April 12, 2011. (Docket No. 29.) This objection is also unopposed by Plaintiff. This time amounts to 14 hours.

9. Fourth, time expended in leaving 11 phone messages will be reduced from 2.0 hours to the more reasonable .5 hour.

10. Fifth, Niagara objects to mediation costs as not taxable under 28 U.S.C. ยง 1920. Defendant, once again, does not respond to this objection. Thus, those costs will deducted from Plaintiff's request, leaving $430.00 in taxable costs ($350 filing fee and $80 process server fee). See Nicholas v. Allianceone Receivables Mgmt., Inc., No. 11-13764, 2012 WL 48033, at *1 (11th Cir. Jan. 10, 2012) (affirming district court's finding that plaintiff ...

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