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Bailey v. United Recovery Solutions, Inc.

United States District Court, W.D. Kentucky, Louisville Division

October 22, 2018

STEPHANIE BAILEY PLAINTIFF
v.
UNITED RECOVERY SOLUTIONS, INC. DEFENDANT

          REPORT AND RECOMMENDATION

          Regina S. Edwards, Magistrate Judge.

         Before the Court is Plaintiff Stephanie Bailey's Motion for Attorneys' Fees and Costs against Defendant United Recovery Solutions, Inc. based on the Court's recent entry of default judgment in favor of Plaintiff. (DN 21; DN 23). The time for Defendant to respond has passed. The District Judge has referred this matter to the undersigned United States Magistrate Judge for a Report and Recommendation. (DN 24).

         Background

         Plaintiff Stephanie Bailey filed a complaint against Defendant United Recovery Solutions, Inc., alleging violations of the Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227, and the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. § 1692. (DN 1). After Defendant was served and failed to answer, the Court entered a default judgment for Bailey. (DN 18, adopting in full and incorporating DN 16). By virtue of the default, the Court found Bailey was entitled to $6, 500 in damages for violations of the TCPA and $1, 000 for violations of the FDCPA. (DN 16, at p. 9). Bailey has now filed a Motion for Attorneys' Fees and Costs against Defendant. (DN 23).

         Discussion

         A. Standard

         The FDCPA entitles a prevailing party to reasonable attorney fees and court costs. 15 U.S.C. § 1692k(a)(3). A reasonable attorney fee is “one that is adequately compensatory to attract competent counsel yet which avoids producing a windfall for lawyers.” Geier v. Sundquist, 372 F.3d 784, 791 (6th Cir. 2004) (citing Reed v. Rhodes, 179 F.3d 453, 471 (6th Cir. 1999)). District courts in the Sixth Circuit use the “lodestar” method to calculate reasonable fees. Imwalle v. Reliance Med. Prods., Inc., 515 F.3d 531, 551 (6th Cir. 2008) (citing Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)). The lodestar method requires multiplying “the number of hours reasonably expended on the litigation . . . by a reasonable hourly rate.” Hensley, 461 U.S. at 433. Because the goal in fee shifting is not to “achieve auditing perfection, ” but to attain “rough justice, ” Fox v. Vice, 563 U.S. 826, 838 (2011), there is a strong presumption that the lodestar figure will be reasonable. Pennsylvania v. Delaware Valley Citizens' Council for Clean Air, 478 U.S. 546, 565 (1986). The party seeking an award of fees should submit evidence supporting the rate claimed and the hours worked. Hensley, 461 U.S. at 433. “Where the documentation of hours is inadequate, the district court may reduce the award accordingly.” Id.

         The Court may also use its discretion to adjust the lodestar fee by considering twelve factors identified by the Fifth Circuit in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974). See Adcock-Ladd v. Sec'y of Treasury, 227 F.3d 343, 349 (6th Cir. 2000). These considerations are: (1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the skill required to perform the legal service properly; (4) the preclusion of other employment by the attorney because of acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the amount involved 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. Johnson, 488 F.2d at 717-19, abrogated on other grounds by Blanchard v. Bergeron, 489 U.S. 87, 90 (1989).

         Bailey asks this Court to award her $3, 580.00 in attorneys' fees and $1, 166.77 in costs.[1]She explains that two law firms, Morgan & Morgan and Anthony & Partners, were retained in this case. (DN 23, at p. 3). For Morgan & Morgan's services from April 5, 2017 through August 15, 2018, Bailey states that she owes: $525.00 for 1.5 hours of attorney time, billed at $350.00 per hour; $2, 235.00 for 14.9 hours of paralegal time, billed at $150.00 per hour; and $1, 166.77 in costs. (Id.). For Anthony & Partners services from July 13, 2018 through August 22, 2018, Bailey states she owes: $820.00 for 4 hours of attorney time, billed at $205.00 per hour. (Id. at pp. 3-5). To support these totals, Bailey submits time sheets from both law firms with a list of billing entries, specifying the date of the billed activity, the individual billing the time, a brief description of the work performed, the time billed in tenths of an hour, and the calculated fee per entry. (See DN 23-1; DN 23-2). After reviewing these entries, it appears that Anthony & Partners only performed work in Bailey's case involving the instant motion for attorneys' fees. (See DN 23-2). Bailey also submits a “case expense report” delineating the costs and fees associated with her case, including filing fees, service of process fees, long distances telephone charges, subpoena compliance charges, and printing and postage expenses. (See DN 23-1, at pp. 5-6).

         B. Attorneys' Fees

         In determining a reasonable hourly rate, “courts should look to the hourly rates prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, or reputation.” Fuhr v. School Dist. of Hazel Park, 364 F.3d 753, 762 (6th Cir. 2004). The court, however, retains broad discretion to determine what constitutes a reasonable hourly rate. Id.; Wells v. New Cherokee Corp., 58 F.3d 233, 239 (6th Cir. 1995).

         Attorney Frank Kerney, a shareholder from Morgan & Morgan requests a rate of $350.00 hourly for the 1.5 hours he billed in this matter, and attorney Bradley W. Crocker, an associate from Anthony & Partners requests a rate of $205.00 for the 4 hours he billed in this matter. (DN 23, at p. 5). Bailey alleges these rates are “customary” in the Tampa Bay metropolitan area for prosecution of commercial litigation or are lower than the market rate and “appear to be similar” to metropolitan areas in the Western District of Kentucky. (Id.). The Motion then states: “[t]he Firms anticipate filing an affidavit of reasonableness as to attorneys' fees once a fee expert has completed her review.” (DN 23, at p. 5). Yet almost two months have passed since Bailey filed her Amended Motion for Attorneys' Fees, and no such affidavit has been submitted.

         Without any evidence of Mr. Kerney's or Mr. Crocker's experience in these types of matters, the Court is left to examine awards in similar FDCPA cases. First the Court looks to similar cases within the Sixth Circuit, where this action was brought. In April of 2017, a judge within this district found $250.00 an hour was a reasonable hourly rate in an FDCPA case. Couch v. Transworld Systems, Inc., No. 3:16-CV-00618-CRS, 2017 WL 1520426, at *2 (W.D. Ky. Apr. 25, 2017). In other district courts within the Sixth Circuit, judges have found $203.00 an hour, Bootz v. K.I.P., LLC, No. 15-1419, 2016 WL 2733093, at *2 (E.D. Mich. May 11, 2016) (finding that requested hourly rate is reasonable and compares favorably with prevailing rates in this district); $325.00 an hour, Watson v. Fin. Accounts Serv. Team, Inc., 2:16-CV-00260-HSM-MCLC, 2017 WL 1404532, at *1-2 (E.D. Tenn. Jan. 30, 2017) (finding requested rate to be reasonable based on declarations of plaintiff's counsel and itemization of services performed), and $350.00 an hour, Tikan v. Asset Acceptance, LLC, No. 13-12173, 2016 WL 1212641, at *3 (E.D. Mich. Feb. 12, 2016) (finding rate to be appropriate in view of the most recent State Bar of Michigan Economics of Law Practice Survey), to all be reasonable hourly rates. In Tikan, the court further found the rate of $125.00 per hour for a legal assistant was reasonable and in line with other paralegal rates approved throughout the district. 2016 WL 1212641, at *3.

         The Court also looks to similar cases in the Tampa Bay area, where the attorneys in this case practice. One judge in the Tampa division of the Middle District of Florida noted that, where a plaintiff provides no information regarding the experience of his or her counsel, their expertise, or their reputations, and nothing about the case appears complex, then “$200.00 to $300.00 per hour is a reasonable hourly rate for a routine FDCPA matter[.]” Myrick v. Distribution & Acquisition Network, No. 8:09-cv-1391-T-33TBM, 2010 WL 2179112, at *5 (M.D. Fla. Apr. 28, 2010). A more recent case from that same district noted that “courts award between $100.00 and $350.00 per hour for attorneys and between $95.00 and $100.00 per hour for paralegals” and ultimately found an hourly rate of $300.00 was appropriate for an attorney with considerable experience where the issues were neither novel nor difficult. Alston v. Receivables, No. 6:17-cv-1723-Orl-31-DCI, 2018 WL 3448595, at *10 (M.D. Fla. June 27, 2018) (citing Castro v. Capital One Servs., LLC, Case No. 8:16-cv-889-T-17TGW, 2017 WL 6765246, at *3 (M.D. Fla. Dec. 15, 2017) ...


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