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Stevens v. EOS CCA

United States District Court, N.D. New York

April 21, 2017

EOS CCA, Defendant.

          MARCUS & ZELMAN, LLC Attorneys for Plaintiff.

          PELTAN LAW, PLLC DAVID G. PELTAN, ESQ. Attorneys for Defendant.




         On September 1, 2016, Sharon Stevens ("Plaintiff") commenced this action pursuant to the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. ("FDCPA") against EOS CCA ("Defendant"). See Dkt. No. 1. On December 14, 2016, Plaintiff accepted an offer of partial judgment in the amount of $1, 501.00 for damages pursuant to Fed.R.Civ.P. 68 as a result of Defendant's alleged violations of the FDCPA. See Dkt. No. 13. The order reserved on the issue of Plaintiff's attorney's fees and costs where "[s]aid fees and costs are to be in an amount as agreed by counsel for the parties, or if they are unable to agree, as determined by the Court, upon Motion." See id at 5.

         Plaintiff's attorney Yitzchak Zelman ("Zelman") and Defendant did not reach an agreement on attorney's fees. As a result, on January 17, 2017 Mr. Zelman filed this pending motion for twenty-three hours of attorney's fees at $250.00 per hour for a total of $5, 750.00 in attorney's fees along with $465.00 in costs and expenses, for a total of $6, 215.00 in fees and costs. See Dkt. No. 16-1 at 9. On February 6, 2017, Defendant filed a response in opposition to Mr. Zelman's motion. See Dkt. No. 19. On February 9, 2017, Mr. Zelman filed his reply to Defendant's motion. See Dkt. No. 20.

         Pursuant to the FDCPA, a prevailing plaintiff may recover "the costs of the action, together with a reasonable attorney's fee as determined by the court." 15 U.S.C. § 1692k(a)(3). Having found authority for an award of attorney's fees to Plaintiff, the Court must now determine whether Plaintiff's fee request is reasonable.

         "When a litigant qualifies as one eligible for attorney's fees under the FDCPA, the district court has the discretion to adjust the amount of fees for various portions of the litigation, guided by reason and the statutory criteria." Kapoor v. Rosenthal, 269 F.Supp.2d 408, 412 (S.D.N.Y. 2003) (citing 15 U.S.C. § 1692k(a)(3)). "Both [the Second Circuit] and the Supreme Court have held that the lodestar-the product of a reasonable hourly rate and the reasonable number of hours required by the case-creates a 'presumptively reasonable fee.'" Millea v. Metro-N. R. Co., 658 F.3d 154, 166 (2d Cir. 2011) (quoting Arbor Hill Concerned Citizens Neighborhood Assoc. v. Cnty. of Albany, 522 F.3d 182, 183 (2d Cir. 2008)) (other citation omitted); see also Bergerson v. N.Y. State Office of Mental Health, Cent. N.Y. Psychiatric Ctr., 652 F.3d 277, 289 (2d Cir. 2011) (stating "[a]ttorneys' fees are awarded by determining a presumptively reasonable fee, reached by multiplying a reasonable hourly rate by the number of reasonably expended hours") (citing Simmons v. N.Y. City Transit Auth., 575 F.3d 170, 174 (2d Cir. 2009)). "The lodestar figure should be in line with the rates prevailing in the community for similar services by attorneys of comparable skill, experience, and reputation." Kapoor, 269 F.Supp.2d at 412 (citing Hensley v. Eckerhart, 461 U.S. 424, 433 (1983); Luciano v. Olsten Corp., 109 F.3d 111, 115 (2d Cir. 1997)).

         "[T]he presumptively reasonable fee boils down to 'what a reasonable, paying client would be willing to pay, ' given that such a party wishes 'to spend the minimum necessary to litigate the case effectively.'" Simmons, 575 F.3d at 174. In the Second Circuit, "'any attorney . . . who applies for court-ordered compensation in this Circuit . . . must document the application with contemporaneous time records . . . specify[ing], for each attorney, the date, the hours expended, and the nature of the work done.'" Marion S. Mishkin Law Office v. Lopalo, 767 F.3d 144, 148 (2d Cir. 2014) (quoting N.Y. State Ass'n for Retarded Children, Inc. v. Carey, 711 F.2d 1136, 1148 (2d Cir. 1983)).

         "In determining a reasonable fee, the district court 'should exclude . . . hours that were not reasonably expended, ' including 'hours that are excessive, redundant, or otherwise unnecessary.'" Genito v. Forster & Garbus LLP, No. 6:15-CV-00954, 2016 WL 3748184, *2 (N.D.N.Y. July 11, 2016) (quoting Hensley, 461 U.S. at 434). "The relevant inquiry for the Court 'is not whether hindsight vindicates an attorney's time expenditures, but whether, at the time the work was performed, a reasonable attorney would have engaged in similar time expenditures.'" Id. (quoting Grant v. Martinez, 973 F.2d 96, 99 (2d Cir. 1992)). "In excluding hours that were not reasonably expended, 'the court has discretion simply to deduct a reasonable percentage of the number of hours claimed 'as a practical means of trimming fat from a fee application.'" Id. (quoting Kirsch v. Fleet St., Ltd., 148 F.3d 149, 173 (2d Cir. 1998)) (other quotation omitted).

         In determining what a reasonable, paying client would be willing to pay, the Court considers the following 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.

Arbor Hill, 522 F.3d at 186 n.3 (citing Johnson v. Ga. Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974)).

         Additionally, "[p]laintiffs cannot recover for time spent by attorneys completing administrative tasks . . . '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.'" Ryan v. Allied Interstate, Inc., 882 F.Supp.2d 628, 636 ...

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