United States District Court, E.D. Missouri, Eastern Division
MELISSA A. BREEDEN, Plaintiff,
CONSUMER ADJUSTMENT CO., INC., d/b/a CACI, Defendant.
MEMORANDUM AND ORDER
A. ROSS UNITED STATES DISTRICT JUDGE
matter is before the Court on Plaintiff's Motion for
Attorney's Fees, Costs, and Disbursements. (Doc. No. 16).
The motion is fully briefed and ready for disposition.
November 16, 2018, Plaintiff filed her Complaint against
Defendant Consumer Adjustment Co., Inc. (“CACi”)
arising from a collection letter she received on September 6,
2018. (Doc. No. 1). Defendant was served on November 30,
2018, and filed its answer on December 21, 2018. (Doc. Nos.
3, 5). On February 20, 2019, Plaintiff filed a First Amended
Complaint. (Doc. No. 13). On February 26, 2019, Defendant
served Plaintiff with an offer of judgment conceding she was
entitled to $1, 751.00 in damages as well as her reasonable
attorney's fees and costs accrued in connection with the
prosecution of her claims. Plaintiff accepted the offer of
judgment on February 27, 2019 (Doc. No. 14); however, the
parties were unable to agree on an award of attorney's
March 21, 2019, Plaintiff filed the instant motion, seeking
an award of attorney's fees in the amount of $11, 340.00
pursuant to the Fair Debt Collection Practices Act
(“FDCPA”), 15 U.S.C. § 1692k. This amount
reflects 37.8 hours spent by attorney Boris Graypel at the
rate of $300.00 per hour. (Doc. No. 16-3). Plaintiff contends
her request for fees is fair and reasonable, in light of
Defendant's “intransigent posture and continuous
opposition” throughout the litigation (Doc. No. 16-1 at
2-3), and is commensurate with awards in similar cases,
citing Karr v. Med-1 Solutions, L.L.C., No.
1:12-CV-01182-DKL-WTL, 2014 WL 5392098, at *5 (S.D. Ind. Oct.
22, 2014) (disparity between $1000 statutory fee award and
$26, 000 attorney fee due to defendant's choice to
“aggressively litigate its position”); Hagy
v. Demers & Adams, L.L.C., No. 2:11-CV-530, 2013 WL
5728345 (S.D. Ohio Oct. 22, 2013) (awarding attorney fees of
$74, 195, noting the amount of time expended was. in part a
product of the defendant's vigorous defense)
(Id. at 3, 12). In response, Defendant argues that
the number of hours billed was excessive and that the hourly
rate requested by Plaintiff's counsel is too high
relative to the prevailing rates in this area and
counsel's lack of experience.
is entitled to a “reasonable attorney's fee as
determined by the court.” 15 U.S.C. § 1692k(a)(3).
When determining the reasonableness of a fee request, the
“lodestar” method is “the most useful
starting point for determining the amount of a reasonable
fee, ” i.e., “the number of hours reasonably
expended on the litigation multiplied by a reasonable hourly
rate.” Hensley v. Eckerhart, 461 U.S. 424, 433
(1983). In determining the overall reasonableness of an award
of attorneys' fees, the Court may adjust this
“lodestar” amount computed above, as the Court
considers the twelve factors first set out in Johnson v.
Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th
Cir. 1974) (limited by Blanchard v. Bergeron, 489
U.S. 87 (1989)), and used to determine the reasonableness of
the fee. See Winter v. Cerro Gordo County Conservation
Board, 925 F.2d 1069, 1074 n. 8 (8th Cir. 1991). These
factors are: (1) the time and labor required; (2) the novelty
and difficulty of the questions; (3) the skill requisite to
perform the legal service properly; (4) the preclusion of
other employment by the attorney due to 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
attorney(s); (10) the undesirability of the case; (11) the
nature and length of the professional relationship with the
client; and (12) awards in similar cases.
of hours reasonably expended
Plaintiff maintains the number of hours expended was
reasonable under the circumstances of this case. In
particular, she notes that a month after Defendant filed its
answer to her complaint, on or about January 21, 2019,
Defendant CACi sent a second collection letter directly to
Plaintiff. Defendant's counsel took the position that
there was no FDCPA violation by his client. At that time,
counsel for Plaintiff provided a demand to Defendant's
counsel to fully resolve the matter, which was rejected
without a counter-offer. This resulted in Plaintiff filing an
amended complaint. Shortly thereafter, on or about February
7, 2019, Defendant's counsel The Barton Law Group sent a
collection letter directly to Plaintiff. Plaintiff's
counsel advised Defendant's counsel of his intention to
file another amended complaint, and issued a demand to
Defendant, which Defendant's counsel failed to address.
Prior to Plaintiff filing a motion for leave to file a second
amended complaint, Defendant made an offer of judgment, which
Plaintiff accepted. Plaintiff contends that the post-filing
conduct of Defendant necessitated additional research as well
as two amendments to her complaint (the first of which was
filed, and the second drafted, but not filed, due to the
accepted offer of judgment).
opposition to Plaintiff's motion, Defendant first
disputes the 9.1 hours charged for preparing the initial
complaint, 40% of which it contends is identical to the
complaint counsel filed for Plaintiff against a different
debt collector in Breeden v. Medical-Commercial Audit,
Inc., 4:18-CV-01936 RLW (E.D. Mo.) (“MCA
case”). Second, Defendant challenges the two hours of
work billed for research on the claims in this case prior to
filing the complaint, because Plaintiff's counsel would
have already conducted this research in the MCA case. Next,
Defendant challenges the 1.4 hours billed by Plaintiff's
counsel for reviewing and analyzing the collection letter,
evaluating potential claims, and legal research. Defendant
argues it should not have taken 1.4 hours to review a
one-page collection letter and then decide to bring the same
two claims brought in the MCA case.
also challenges counsel's billing at his attorney rate
for paralegal/administrative work, such as preparing
documents for filing, filling out civil cover sheets, and
receiving and reviewing CM/ECF docket notifications.
Defendant requests that time spent on administrative or
paralegal duties (1.8 hours), be billed at the hourly rate of
$100, a standard rate for that type of work.
addition, Defendant disputes as excessive the amount of time
Plaintiff's counsel has billed for reviewing the
Court's Rule 16 Order (.6 hours); preparing for a Rule 26
conference (.4 hours); traveling to meet Plaintiff to discuss
the legal implications of receiving a new collection letter
(1.6 hours); reading three short emails from Defendant's
counsel (.4 hours); and corresponding with the court clerk
regarding cancellation of the Rule 16 conference (.3 hours).
Defendant also takes issue with 1.3 hours billed for legal
research it considers to be duplicative and disputes 2.5
hours billed for preparation of documents that were never
served, including discovery and a motion for leave to file a
second amended complaint. Finally, Defendant disputes the 5.6
hours billed for preparing the motion for attorney's fees
as excessive in a case that lasted only a few months.
Court believes a reduction in the amount of attorney's
fees requested is warranted given the requirements of this
case. The case was only a few months old when Plaintiff
accepted Defendant's offer of judgment and the only
substantive filings in this case were Plaintiff's
complaint, Defendant's answer, and Plaintiff's
amended complaint. By agreement of the parties, the Rule 16
scheduling conference was cancelled. No. discovery was
conducted and no dispositive motions were filed. As a
starting point, Plaintiff has requested fees for 37.8 hours
of work. Defendant consents to 23.1 hours of attorney work.
(Doc. No. 19 at 12). Thus, 14.7 hours of work are contested.
After a thorough review of the record, the Court will reduce
the contested amount by 8.0 hours. The Court believes this is
appropriate given the atypical amount of time Mr. Graypel
spent researching claims and drafting the complaint,
reviewing communications, and performing administrative work.
After an 8.0 hour reduction, the Court awards Plaintiff her
fees for 29.8 hours of attorney work.