Larsen v. Ar Res., Inc., CIVIL ACTION NO: 4:19cv41

CourtUnited States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia)
Citation453 F.Supp.3d 849
Parties Erik LARSEN, Plaintiff, v. AR RESOURCES, INC., Defendant.
Docket NumberCIVIL ACTION NO: 4:19cv41
Decision Date10 April 2020

453 F.Supp.3d 849

Erik LARSEN, Plaintiff,
AR RESOURCES, INC., Defendant.


United States District Court, E.D. Virginia, Newport News Division.

Signed April 10, 2020

453 F.Supp.3d 850

Counsel for Plaintiff: Joshua A. Mize, Esquire, Mize Law PLLC, 110 Front Street, Suite 300, Jupiter, FL 33477.

Counsel for Defendant: Randall Clair Lenhart, Jr., Esquire, Kalbaugh Pfund & Messersmith PC, 1200 PNC Bank Building, 555 East Main Street, Norfolk, VA 23510, Kevin Cornish, Esquire, High Swartz, LLP, 40 East Airy Street, Norristown, PA 19401.



453 F.Supp.3d 851

This matter comes before the court on the Plaintiff's Motion for Award of Attorney's Fees and Expenses and accompanying brief in support, filed on February 14, 2020. ECF Nos. 62, 63.

I. Procedural History

On April 24, 2019, the Plaintiff filed a Complaint in this court against the Defendant, alleging that the Defendant violated the Fair Debt Collection Practices Act ("FDCPA"). ECF No. 1; 15 U.S.C. §§ 1692c, 1692d, 1692e, 1692f, 1692k. The Plaintiff filed an Amended Complaint on May 16, 2019, and a Second Amended Complaint, adding a claim under the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. § 227(b)(1)(B), on October 24, 2019. ECF Nos. 5, 17. On December 19, 2019, the Defendant filed a Motion for Partial Summary Judgment, requesting that the court enter summary judgment in the Defendant's favor on Count Two and on one of the claims in Count One of the Second Amended Complaint. ECF No. 19. The Plaintiff filed a Response, opposing summary judgment on the FDCPA claim but not opposing summary judgment on the TCPA claim. ECF No. 22. The court granted summary judgment on the TCPA claim and reserved ruling on the FDCPA claim. ECF No. 33.

A three-day jury trial was held on January 28, 29, and 31, 2020. The jury returned a verdict for the Plaintiff, and awarded him the maximum $1,000 statutory damages and no actual damages. ECF No. 56. Judgment was entered for the Plaintiff on February 3, 2020. ECF No. 60. The Plaintiff filed the instant Motion on February 14, 2020. ECF No. 62. The Defendant filed a Response on February 28, 2020. ECF No. 64. The Plaintiff filed a Reply on March 2, 2020. ECF No. 69.1

II. Legal Standards

In the case of a successful action under the FDCPA, the defendant is liable to the plaintiff for attorney's fees and costs. 15 U.S.C. § 1692k(a)(3). The award of attorney's fees under the FDCPA "is mandatory in all but the most unusual circumstances," although the court retains broad discretion in determining the fee award. Carroll v. Wolpoff & Abramson, 53 F.3d 626, 628 (4th Cir. 1995). In the Fourth Circuit, courts use a three-step process to calculate attorney's fees. First, the court determines the "lodestar figure" by "multiplying the number of reasonable hours expended times a reasonable rate." Robinson v. Equifax Info. Servs., LLC, 560 F.3d 235, 243 (4th Cir. 2009). The lodestar amount can be adjusted for reasonableness based on the multifactor Johnson test. Id.; see Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974). Next, the court subtracts fees for hours spent on unsuccessful claims, if the hours spent on those claims were unrelated to the successful

453 F.Supp.3d 852

claims. Id. at 244. Finally, the court may adjust the remaining amount based on the plaintiff's degree of success. Id.; see Lilienthal v. City of Suffolk, 322 F. Supp. 2d 667, 675 (E.D. Va. 2004) (Smith, J.) ("[T]he degree of success obtained by the plaintiff is the most critical factor in determining the reasonableness of a fee award.").

III. Analysis

A. Lodestar Amount

The Plaintiff claims 221.7 hours worked and a reasonable hourly rate of $400.00, for total attorney's fees of $88,680.00. Brief at 8. In support of these figures, Plaintiff's counsel, Joshua Mize, attached his timesheet for the matter and a declaration by Lisa Bertini, an attorney who regularly practices before this court. Ms. Bertini's declaration stated her opinion that $400.00 is consistent with the market rate in the Norfolk area for matters such as this one and for an attorney of Mr. Mize's experience, and that 221.7 hours is an "exceptionally reasonable" amount of time to have expended on the case. ECF Nos. 63-1, 63-2.

In response, the Defendant challenges three aspects of the lodestar calculation. First, the Defendant argues that the Plaintiff failed to prove by "specific evidence" that $400.00 is a reasonable hourly rate. Response at 5. Second, the Defendant points to particular time entries, totaling 148.6 hours, that it argues should be excluded as unreasonable. Id. at 5–10. These entries include 57.4 hours of contested travel time, as well as numerous entries that the Defendant claims are redundant, excessive, or represent block billing. Id. at 11. Third, the Defendant asserts that the lodestar amount is unreasonable in light of the twelve " Johnson" factors. Id. at 12–13. The court will address, in turn, each of the Defendant's objections to the Plaintiff's lodestar amount.

i. Reasonable Hourly Rate

While the Defendant is correct that the Plaintiff's proposed hourly rate must be supported by "specific evidence," the Plaintiff has done so in this case. The Plaintiff produced a declaration by an experienced local attorney, who represented that she had knowledge of the prevailing market rates for FDCPA attorneys in the area. See ECF No. 63-2. This is exactly the kind of "specific evidence" that the Fourth Circuit has said satisfies the fee applicant's burden of production on this issue. See Robinson, 560 F. 3d at 245 ("Examples of the type of specific evidence that we have held is sufficient to verify the prevailing market rates are affidavits of other local lawyers who are familiar both with the skills of the fee applicants and more generally with the type of work in the relevant community."). The Plaintiff, by contrast, offers no affidavits or other specific evidence in support of an alternative rate.2 Although a reasonable hourly rate differs from attorney to attorney, recent cases in this District indicate that $400.00 is a reasonable market rate for consumer protection work in the area.3 For these reasons, the court finds that $400.00 is a reasonable hourly rate in this case.

453 F.Supp.3d 853

ii. Challenged Time Entries

The Defendant contests forty separate line items in Mr. Mize's time sheet, totaling 148.6 hours of challenged time. The challenged line items fall into three general categories: travel, block billing, and general excessiveness.4

Courts around the country differ widely in their treatment of travel time in calculating the lodestar amount. In this District, courts generally allow attorneys to recover a fee award for time spent traveling, but often apply a discount to the hourly rate. See Project Vote/Voting for America, Inc. v. Long, 887 F. Supp. 2d 704 (E.D. Va. 2012) (Smith, C.J.); Prison Legal News v. Stolle, 129 F. Supp. 3d 390, 403–04 (E.D. Va. 2015) (Davis, J.) (collecting cases). The Defendant in this case argues that the court should reduce both the number of hours spent traveling and the hourly rate applied to those hours, in part because Mr. Mize could have agreed to do depositions over videoconferencing or hired local counsel. Response at 10. The court finds that an award of half the claimed travel fees is appropriate, in keeping with recent precedent from this district. Prison Legal News, 129 F. Supp. 3d at 404. Although it was not unreasonable for Mr. Mize to demand in-person depositions, the 57.4 hours of travel time did not require legal skills and presented the opportunity to do work related or unrelated to the case, make business phone calls, or otherwise be productive. The court will reduce the lodestar amount by $11,480.00, or half of the requested attorney's fees related to travel.

The Defendant's arguments regarding block billing are less convincing. The Defendant points to eleven entries that it alleges are "block billing." While it is true that block billing can constitute inadequate documentation of an attorney's time expenditures, courts generally apply the term when an attorney combines multiple unrelated tasks into one entry, such as when an attorney records a single entry for an entire day of work. See Project Vote, 887 F. Supp. 2d at 716. Here, the alleged instances of block billing largely consist of entries where Mr. Mize billed for both researching and writing documents, or for trial preparation. Researching and writing are not necessarily separable activities, and trial preparation often involves a number of different tasks being done simultaneously. As such, the court finds that the Plaintiff has met his burden of describing his entries with sufficient specificity, and, therefore, did not "block bill." However, the court agrees with the Defendant that the descriptions for four of the entries, totaling 25.2 hours, appear to include work that could be considered secretarial rather than legal. See Response at 8–9. The...

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