United States District Court, E.D. New York
MEMORANDUM AND ORDER
F. Bianco, District Judge
August 25, 2015, plaintiff Kristine McMahon-Pitts brought
this action alleging that defendant Richard Sokoloff had
attempted collection on a paid debt in violation of the Fair
Debt Collections Practices Act (“FDCPA”), 15
U.S.C. §§ 1692e, e(2), e(10), and used an auto
dialer in violation of the Telephone Consumer Protection Act
(“TCPA”), 47 U.S.C. § 227(b). (ECF No. 1.)
Plaintiff dropped her TCPA claim against defendant on April
15, 2016, after receiving discovery proving that defendant
did not use an auto dialer. Subsequently, on April 25, 2016,
defendant presented a Rule 68 offer of judgment that provided
plaintiff the maximum statutory damages under the FDCPA, as
well as reasonable attorneys' fees and costs, as agreed
to by the parties or decided by the Court, up until the date
of service of the offer. Plaintiff accepted the offer.
before the Court is plaintiff's motion for attorneys'
fees and costs. (ECF No. 30.) For the reasons set forth
below, the Court awards plaintiff $12, 964.50 in
attorneys' fees and $786.51 in costs.
December 2014, plaintiff received a letter from defendant
alleging that a debt was due to 24/7 Emergency Care P.C. for
$392.58. (Civil Complaint and Jury Trial Demand
(“Compl.”), ECF No. 1, at ¶ 7.) On January
6, 2015, plaintiff mailed a check covering the full balance,
which was subsequently cashed. (Id. ¶ 9.)
Afterwards, defendant called plaintiff on her cell phone once
on January 14, three times on January 21, five times on
February 23, and once on March 14. (Id. ¶¶
10-13.) Plaintiff did not answer all of these calls, but when
she did, she told defendant to stop calling her.
(Id. ¶¶ 10-13).
filed the complaint in this action on August 25, 2015,
alleging violations of the FDCPA and TCPA. (ECF No. 1.) She
initially sought $16, 500 in connection with the TCPA
violation and $1, 000, the statutory maximum, in connection
with the FDCPA violation. (ECF No. 32-1.) Plaintiff served
defendant on September 2, 2015 (ECF No. 6), and defendant
answered on October 1, 2015 (ECF No. 10). At the initial
conference on November 24, 2015, Magistrate Judge Brown set
January 24, 2016 as the completion date for Phase I
Discovery. (ECF No. 16.)
November 30, 2015, plaintiff sent interrogatories and
requests for production seeking information on
defendant's phone system. Defendant did not provide this
information by the Phase I deadline, stating that it was
irrelevant. (See ECF No. 30-2.) Plaintiff sent
letters again requesting this information on February 4 and
22, 2016. (ECF Nos. 30-2, 30-3.) Separately, on February 23,
2016, in response to defendant's request, plaintiff
tendered a settlement demand reflecting an amount inclusive
of both claims. Defendant did not agree to this demand.
February 29, defense counsel Robert Arleo notified
plaintiff's counsel, Daniel Ze-mel and Matthew Sheffield,
that defendant purchased his office telephones from
RingCentral. (Def.'s Mem. Opp'n to Pl.'s Mot. for
Attorneys' Fees and Costs (“Def.'s Br.”),
ECF No. 32, at 4.) According to defendant, plaintiff's
counsel responded in an email stating, “Telling me
where your client purchases it's [sic] phone does not
tell me the system.” (Id.) The next day,
Arleo emailed Zemel and Sheffield to provide them with the
model numbers for the phone systems used by defendant. (ECF
No. 33-2.) Zemel relayed that information to his expert, Jeff
Han-sen, who replied, “Those two are only the telephone
itself . . . we would need them to tell us what phone system
and or dialer is used.” (ECF No. 33-3 (ellipsis in
April 11, 2016, Zemel and Arleo attended a status conference
with Judge Brown, which ultimately turned into a settlement
conference. (See ECF No. 23.) The parties left with
a settlement in principle, but on April 14, defendant sent a
letter to Judge Brown notifying him that defendant did
“not consent to the settlement proposal which was
effected . . . at the status conference.” (ECF No. 22.)
That same day, Arleo provided Ze-mel with the phone user
guide for the phone systems that defendant used. (ECF No.
33-4.) Zemel gave the user guide to his expert, who then
confirmed that defendant did not use an auto dialer. (ECF No.
33-5.) Ze-mel sent Arleo an email the next day acknowledging
receipt of the user guide, reporting on the expert's
conclusion, and stating, “I will no longer be pursuing
my TCPA claims.” (ECF No. 30-4, at ¶ 6.) The
parties subsequently filed a stipulation of voluntary
dismissal as to the TCPA claim on April 23, 2016. (ECF No.
24), which this Court approved shortly thereafter (ECF No.
on April 25, 2016, defendant provided plaintiff with a Rule
68 offer of judgment, which plaintiff accepted. (ECF No. 27.)
Under the terms of the offer, judgment was entered against
defendant for $1, 000, the maximum amount permitted under the
FDCPA. (Id.) The judgment was also to “include
an additional amount for Plaintiff's reasonable costs and
attorneys' fees accrued through the date of service of
this Offer of Judgment [April 25, 2016], either: 1) as agreed
to by counsel for the parties; or 2) in the event counsel
cannot agree, as determined by the Court upon application by
Plaintiff's counsel.” (Id.) The Clerk of
the Court was directed to enter judgment accordingly and
close the case on May 10, 2016. (Id.)
parties were unable to reach an agreement on attorneys'
fees, and plaintiff moved to reopen the case on May 19, 2016.
(ECF No. 28.) This Court granted the motion the next day (ECF
No. 29), and plaintiff filed the present motion for
attorneys' fees on May 29, 2016 (ECF No. 30). Defendant
filed an opposition on June 22 (ECF No. 32), and plaintiff
replied on June 28 (ECF No. 33). Defendant then filed a
request to submit a sur-reply, in which he asked for an
opportunity to disclose the settlement amount plaintiff
demanded in February. (ECF No. 34.) He also requested leave
to depose plaintiff's expert. (Id.) Plaintiff
opposed this request. (ECF No. 35.) Oral argument was held on
September 7, 2016. Afterward, in response to this Court's
request for supplemental briefing on the fees awarded in
FDCPA cases in the Second Circuit, the parties submitted
supplemental letters disclosing such cases. (ECF Nos. 37-38.)
In the course of doing so, defendant also raised new
arguments (ECF No. 38), and plaintiff responded to those
arguments in a separate letter (ECF No. 39). Defendant again
requested permission to depose plaintiff's expert (ECF
Nos. 40-41), which plaintiff opposed (ECF No. 42). The Court
has fully considered the parties submissions.
in our legal system, “each party must pay its own
attorney's fees and expenses.” Perdue v. Kenny
A. ex rel. Winn, 559 U.S. 542, 550 (2010). Under the
FDCPA, however, “[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. 1998) (quoting 15 U.S.C.
§ 1692k(a)(3)); see also Nero v. Law Office of Sam
Streeter, P.L.L.C., 655 F.Supp.2d 200, 209-10 (E.D.N.Y.
to determine reasonable attorneys' fees, a court must
calculate a “lodestar figure, ” which is
determined by multiplying the number of hours reasonably
expended on a case by a reasonable hourly rate. See
Hens-ley v. Eckerhart, 461 U.S. 424, 433 (1983); see
also Luciano v. Olsten Corp., 109 F.3d 111, 115 (2d Cir.
1997). “Both [the Second Circuit] and the Supreme Court
have held that the lodestar . . . creates a
‘presumptively reasonable fee.'” Millea
v. Metro-N. R.R. Co., 658 F.3d 154, 166 (2d Cir. 2011)
(citing Arbor Hill Concerned Citizens Neighborhood Assoc.
v. Cnty. of Albany, 522 F.3d 182, 183 (2d Cir. 2008);
Perdue, 559 U.S. at 550). Correspondingly,
“‘the lodestar figure includes most, if not all,
of the relevant factors constituting a
“reasonable” attorney's fee' . . .
.” Perdue, 559 U.S. at 553 (quoting
Pennsylvania v. Del. Valley Citizens' Council for
Clean Air, 478 U.S. 546, 565-66 (1986)). Thus, the
Supreme Court has recognized that “the lodestar method
produces an award that roughly approximates the fee
that the prevailing attorney would have received if he or she
had been representing a paying client who was billed by the
hour in a comparable case.” Id. at 551.
“The burden is on the party seeking attorney's fees
to submit sufficient evidence to support the hours worked and
the rates claimed.” Hugee v. Kimso Apartments,
LLC, 852 F.Supp.2d 281, 298 (E.D.N.Y. 2012) (citing
Hensley, 461 U.S. at 433).
requests an award of attorneys' fees in the amount of
$14, 635.50. Defendant argues that this is excessive and
merits a reduction. For the following reasons, the Court, in
its discretion, awards plaintiff $12, 964.50 in
Reasonable Hourly Rate
reasonable hourly rate is the rate a paying client would be
willing to pay.” Arbor Hill, 522 F.3d at 190.
The Second Circuit's “‘forum rule'
generally requires use of ‘the hourly rates employed in
the district in which the reviewing court sits in calculating
the presumptively reasonable fee.'” Berger-son
v. N.Y. State Office of Mental Health, Cent. N.Y. Psychiatric
Ctr., 652 F.3d 277, 290 (2d Cir. 2011) (quoting
Simmons v. N.Y.C. Transit Auth., 575 F.3d 170, 174
(2d Cir. 2009)). The Second Circuit also instructed district
courts to consider the factors set forth in Johnson v.
Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir.
1974), abrogated on other grounds by Blanchard v.
Bergeron, 489 U.S. 87, 92-93 (1989). See Arbor
Hill, 522 F.3d at 190. The twelve Johnson
(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.
Id. at 186 n.3 (quoting Johnson, 488 F.2d
at 717-19). Finally, a district court should also consider
“that a reasonable, paying client wishes to spend the
minimum necessary to litigate the case effectively, ”
and “that such an individual might be able to negotiate
with his or her attorneys, using their desire to obtain the
reputational benefits that might accrue from being associated
with the case.” Id. at 190. “The burden
rests with the prevailing party to justify the reasonableness
of the requested rate, ” and a plaintiff's attorney