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Harper v. Stellar Recovery, Inc.

United States District Court, D. Colorado

November 16, 2015

STELLAR RECOVERY, INC., a Florida corporation, Defendant.



This Fair Debt Collection Practices Act (“FDCPA”) case is before me on Plaintiff Suzanne Harper’s Motion for Attorney’s Fees [Doc. # 13]. Her motion follows the Court’s entry of judgment against Defendant Stellar Recovery, Inc. I have reviewed the motion, Defendant’s response [Doc. # 15], Plaintiff’s reply [Doc. # 16], and all exhibits thereto. Oral argument would not materially assist me in determining this motion. As set forth below, I GRANT IN PART and DENY IN PART the motion and award Plaintiff $3, 390.00 of the $4, 725.00 in attorney’s fees that she has requested.

I. Background

On June 25, 2015, Plaintiff filed her complaint, in which she alleged that Defendant violated the FDCPA, 15 U.S.C. § 1692, et seq., and sought damages, costs, and attorney’s fees. Doc. # 1. On August 11, 2015, Defendant made an offer of judgment under Federal Rule of Civil Procedure 68 in the amount of $1000.01 plus costs and reasonable attorney’s fees. Doc. # 9-1. The offer provided that the Court would determine reasonable attorney’s fees if the parties were unable to reach agreement. Id. On August 21, 2015, Plaintiff accepted the offer. Doc. # 9. The Court entered judgment against Defendant. Doc. # 11. The parties stipulated to $470.00 in costs but have been unable to reach agreement as to the amount of attorney’s fees to be awarded. Doc. # 12.

II. Law

The FDCPA allows a prevailing plaintiff to recover costs and a “reasonable attorney’s fee as determined by the court.” 15 U.S.C. § 1692k(a)(3). The “lodestar” amount of fees is “the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate.” Anchondo v. Anderson, Crenshaw & Assocs., 616 F.3d 1098, 1102 (10th Cir. 2010) (citing Hensley v. Eckerhart, 461 U.S. 424 (1983)). The lodestar is a “presumptively reasonable fee that may in rare circumstances be adjusted to account for the presence of special circumstances.” Anchondo, 616 F.3d at 1102 (citing Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542 (2010)). “The burden of proving the claimed number of hours and rate is on the applicant.” Malloy v. Monahan, 73 F.3d 1012, 1018 (10th Cir. 1996). The “determination of fees should not result in a second major litigation.” Fox v. Vice, 131 S.Ct. 2205, 2216 (2011). The goal is to “do rough justice, not to achieve auditing perfection.” Id. Accordingly, “trial courts may take into account their overall sense of a suit, and may use estimates in calculating and allocating an attorney’s time.” Id.

III. Analysis

A. Hourly Rate

The court determines an attorney’s reasonable hourly rate by looking to the “prevailing market rate in the relevant community” for “similar services by lawyers of reasonably comparable skill, experience and reputation.” Guides, Ltd. v. Yarmouth Grp. Prop. Mgmt., Inc., 295 F.3d 1065, 1078 (10th Cir. 2002). Plaintiff has been represented by attorney David M. Larson in this case. She argues that his reasonable hourly rate is $350. Defendant urges an hourly rate of $250.

It is undisputed that Mr. Wynkoop has been in practice for 14 years and has litigated over 2, 300 FDCPA matters in this Court. Mot. at 9-10 [Doc. # 13]. Plaintiff has submitted an affidavit from Richard Wynkoop, Esq., a fellow “consumer law” practitioner in Colorado who is familiar with Mr. Larson’s skill, experience, and reputation in the legal community. Wynkoop Aff. ¶¶ 5-7 [Doc. # 13-2]. Mr. Wynkoop notes that Mr. Larson is “known nationally as a leading practitioner in the field of [FDCPA] litigation and has taught at numerous national CLEs on the FDCPA.” Id. ¶ 8. Mr. Wynkoop opines that $350 per hour is “consistent with the prevailing market rates charged by similarly qualified attorneys” in the Denver metropolitan area. Id. ¶ 14.

Defendant has submitted no affidavits or declarations contradicting Mr. Wynkoop’s affidavit. Rather, Defendant notes that I and other judges of this Court have in the past found that Mr. Larson’s reasonable hourly rate is $250 per hour. See, e.g., Alexander v. Stellar Recovery, Inc., No. 13-CV-02280-LTB-MJW, 2014 WL 2993654, at *2 (D. Colo. July 3, 2014); Segura v. Midland Credit Mgmt., Inc., No. 12-CV-00830-PAB-BNB, 2013 WL 560702, at *2 (D. Colo. Feb. 14, 2013); Varley v. Midland Credit Mgmt., Inc., No. 11-CV-02807-REB-MJW, 2012 WL 2107969, at *1 (D. Colo. June 11, 2012). Plaintiff responds that this practice dates back to at least 2008 and submits that Mr. Larson’s reasonable hourly rate has increased to $350 per hour since that time. See Order [Doc. # 18], Babeon v. Nat’l Action Fin. Servs., Inc., No. 08-cv-00027-JLK-CBS (D. Colo. June 12, 2008).

A “district court abuses its discretion when it ignores the parties’ market evidence and sets an attorney’s hourly rate using the rates it ‘consistently grants.’” Case v. Unified Sch. Dist. No. 233, Johnson Cnty., Kan., 157 F.3d 1243, 1255 (10th Cir. 1998) (citation and brackets omitted). With that in mind, and for the following reasons, I find that the midpoint between the parties’ proposed rates-$300 per hour-is the prevailing market rate for someone with Mr. Larson’s experience and skill to handle an FDCPA matter like this one. See Id. at 1257 (district court may fix hourly rates “in accordance with” evidence submitted by either party, may “arrive[] at a compromise” between competing evidence, or may “set the rates according to other competent market evidence”).

First, it is undisputed that Mr. Larson has extensive knowledge and experience with regard to FDCPA matters. According to Mr. Wynkoop and a former magistrate judge of this Court, Mr. Larson is a leading practitioner in the field. See King v. Midland Credit Mgmt., Inc., No. 11-CV-02808-CMA-BNB, 2012 WL 3590788, at *2 (D. Colo. Mar. 1, 2012) (noting that Mr. Larson “remains the premier lawyer in matters involving the FDCPA”), report and recommendation adopted as modified, 2012 WL 3590787 (D. Colo. Aug. 20, 2012). Second, a recent survey found the median hourly rate for consumer law attorneys in the Denver area to be $300. See Ronald L. Burdge, U.S. Consumer Law Att’y Fee Survey Rep. 2013-14, at 83, available at Surveyed attorneys had been in practice a median of 12 years, similar to Mr. Larson. Id.; see also Peterson-Hooks v. First Integral Recovery, LLC, No. 12-CV-01019-PAB-BNB, 2013 WL 2295449, at *7 (D. Colo. May 24, 2013) (relying on prior edition of survey to fix hourly rate at $250 in FDCPA matter); Andalam v. Trizetto Grp., No. 12-CV-01679-WYD-MJW, 2013 WL 5952012, at *3 (D. Colo. Nov. 7, 2013) (same). Finally, another judge of this Court has approved a “partner rate of $300 per hour” in an FDCPA case, and Mr. Larson has a comparable level of ...

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