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Gregg v. N.A.R., Inc.

United States District Court, D. Colorado

March 12, 2014

SHANE GREGG, Plaintiff,
v.
N.A.R., INC., Defendant.

ORDER

PHILIP A. BRIMMER, District Judge.

This matter is before the Court on Plaintiff's Motion for Attorney Fees [Docket No. 16] filed by plaintiff Shane Gregg.

I. BACKGROUND

On May 3, 2013, plaintiff filed a complaint in the District Court of Adams County, Colorado alleging that defendant violated the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692 et seq. [Docket No. 1-2]. On May 20, 2013, defendant removed the case to this Court. Docket No. 1. On July 1, 2013, defendant filed a stipulated motion for a protective order. Docket No. 8. On July 11, 2013, plaintiff filed a Motion for Summary Judgment. Docket No. 12. On July 12, 2013, defendant offered to settle with plaintiff in the amount of $1, 001 plus reasonable attorney's fees and costs, and plaintiff filed a Notice of Acceptance of Defendant's Rule 68 Offer. Docket No. 13.

In the instant motion, plaintiff seeks $4, 775 in attorney's fees for 19.1 hours of work provided by his attorney, Matthew R. Osborne, at an hourly rate of $250. Docket No. 16 at 4. Plaintiff seeks $47.50 in paralegal fees for 0.5 hours of work provided by paralegal Christopher Lutz. Id. Defendant argues that, given Mr. Osborne's experience, an hourly rate of $250 is unreasonable and that, given how quickly the case was resolved, 19.1 hours is excessive. Docket No. 19 at 6-7.

II. ANALYSIS

Section 1692k(a) of the FDCPA provides that a successful plaintiff may seek from defendant a "reasonable attorney's fee as determined by the court." 15 U.S.C. § 1692k(a)(3). To determine a reasonable fee request, a court must begin by calculating the "lodestar amount." Robinson v. City of Edmond, 160 F.3d 1275, 1281 (10th Cir. 1998). The lodestar amount is the "number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate." Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). A party seeking an award of attorney's fees must establish the reasonableness of each dollar and each hour for which the party seeks an award. Jane L. v. Bangerter, 61 F.3d 1505, 1510 (10th Cir. 1995).

A. Hourly Rate

A "reasonable rate" is defined as the prevailing market rate in the relevant community for an attorney of similar experience. Guides, Ltd. v. Yarmouth Group Prop. Mgmt., Inc., 295 F.3d 1065, 1078 (10th Cir. 2002); Malloy v. Monahan, 73 F.3d 1012, 1018 (10th Cir. 1996). The party requesting fees bears "the burden of showing that the requested rates are in line with those prevailing in the community." Ellis v. Univ. of Kan. Med. Ctr., 163 F.3d 1186, 1203 (10th Cir. 1998). In order to satisfy his burden, plaintiff must produce "satisfactory evidence - in addition to the attorney's own affidavits - that the requested rates are in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience and reputation." Blum v. Stenson, 465 U.S. 886, 895 n.11 (1984).

Plaintiff correctly points out that the prevailing rate in Colorado for attorneys representing clients in FDCPA cases is $250 per hour. See Peterson-Hooks v. First Integral Recovery, LLC, No. 12-cv-01019-PAB-BNB, 2013 WL 2295449, at *7 n.10 (D. Colo. May 24, 2013) (collecting cases). Defendant argues that plaintiff lacks the experience of FDCPA attorneys generally awarded $250 per hour and, as such, that Mr. Osborne's rate should be reduced to $200 or $225 per hour.[1] Docket No. 19 at 7. Plaintiff provides little indication of Mr. Osborne's level of experience, but argues that, in this district, $300 per hour was determined a reasonable rate for Mr. Osborne's services in an FDCPA case. Docket No. 16 at 3 (citing Reynolds v. Procollect, Inc., No. 12-cv-02484-WJM-BNB, 2013 WL 3786645 (D. Colo. July 19, 2013). Plaintiff also submits supplemental authority indicating that Mr. Osborne has been awarded an hourly rate of $250 in state court cases concerning issues similar to those raised in FDCPA cases. Docket No. 32. However, plaintiff does not indicate whether those courts had the benefit of additional information regarding Mr. Osborne's level of experience. Plaintiff claims that Mr. Osborne has recently obtained two jury verdicts for his clients in excess of $60, 000. Docket No. 20 at 1. Mr. Osborne also avers that he is a member of the National Association of Consumer Bankruptcy Attorneys and National Association of Consumer Advocates and attends and teaches seminars and continuing legal education classes on consumers' rights. Docket No. 16-1 at 1, ¶ 5. Defendant indicates that Mr. Osborne has filed 76 cases in this district since 2010, which is a significant number of federal filings. See Docket No. 19 at 7. The Court finds that an hourly rate of $250 is reasonable for an attorney of Mr. Osborne's experience.

Mr. Lutz' hourly rate is $95, but plaintiff provides no information regarding Mr. Lutz' level of experience. The Consumer Law Attorney Fee Survey lists the median paralegal rate for the Western region as $99.00. See Ronald L. Burdge, United States Consumer Law Attorney Fee Survey Report 2010-2011 at 42, available at www.nclc.org/images/pdf/litigation/fee-survey-report-2010-2011.pdf. The Court finds that an hourly rate of $95 is reasonable for work performed by Mr. Lutz.

B. Number of Hours

In determining the reasonableness of the hours expended, a court considers several factors. First, it considers whether the fees pertain to tasks that would ordinally be billed to a client. See Ramos v. Lamm, 713 F.2d 546, 554 (10th Cir. 1983), overruled on other grounds by Penn. v. Del. Valley Citizens' Council for Clean Air, 483 U.S. 711, 717 n. 4 (1987). The Supreme Court has found non-compensable "purely clerical or secretarial tasks [which] should not be billed at a paralegal rate, regardless of who performs them." Missouri v. Jenkins by Agyei, 491 U.S. 274, 288 n.10 (1989). Plaintiff must demonstrate that his counsel used "billing judgment" in winnowing down the hours actually spent to those reasonably expended. Praseuth v. Rubbermaid, Inc., 406 F.3d 1245, 1257 (10th Cir. 2005). "Billing judgment consists of winnowing the hours actually expended down to the hours reasonably expended." Case v. Unified Sch. Dist. No. 233, 157 F.3d 1243, 1250 (10th Cir. 1998). "In determining what is a reasonable time in which to perform a given task, " an attorney submitting billing entries should consider the following factors: (1) the complexity of the case; (2) the number of reasonable strategies pursued; (3) the responses necessitated by the maneuvering of the other side; and (4) "the potential duplication of services" caused by the presence of multiple attorneys when one would suffice. Ramos, 713 F.2d at 554.

A court should also take extra care to ensure that an attorney has not included unjustified charges in his billing statement. Praseuth, 406 F.3d at 1257. Ultimately, the Court's goal is to fix a fee that would be equivalent to what the attorney would reasonably bill for those same services in an open market and fees will be denied for excessive, redundant, and otherwise unnecessary expenses. Ramos, 713 F.2d at 553. The burden is on the party requesting fees to prove that its counsel exercised proper billing judgment. Case, 157 F.3d at 1250 ("Counsel for the party claiming the fees has the burden of proving hours to the district court by submitting meticulous, ...


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