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McMahon-Pitts v. Sokoloff

United States District Court, E.D. New York

March 15, 2017

Kristine McMahon-Pitts, Plaintiff,
v.
Richard Sokoloff, Defendant.

          MEMORANDUM AND ORDER

          Joseph F. Bianco, District Judge

         On 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.

         Presently 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.

         I. Background

         In 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).

         Plaintiff 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.)

         On 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.

         On 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.)[1] 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 original).)

         On 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. 25).

         Meanwhile, 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.)

         The 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.

         II. Attorneys' Fees

         Normally 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. 2009).

         Generally, 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).

         Plaintiff 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 attorneys' fees.

         A. Reasonable Hourly Rate

         “The 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 factors are:

(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 “should ...


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