McDermott v. Marcus, Errico, Emmer & Brooks, P.C., CIVIL ACTION NO. 09-10159-MBB

CourtUnited States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
Writing for the CourtBOWLER, U.S.M.J.
Docket NumberCIVIL ACTION NO. 09-10159-MBB
PartiesWILLIAM M. MCDERMOTT, Plaintiff, v. MARCUS, ERRICO, EMMER & BROOKS, P.C., Defendant.
Decision Date29 September 2014




September 29, 2014



Pending before this court is a motion filed by plaintiff William M. McDermott ("plaintiff") seeking attorney's fees in the amount of $59,924.52 and costs in the amount of $2,343.14. (Docket Entry # 85). Defendant Marcus, Errico, Emmer & Brooks, P.C. ("MEEB"), a professional corporation of attorneys located in Braintree, Massachusetts that concentrates in condominium law, seeks to eliminate 115.1 of the total 541.15 hours plaintiff's attorney expended because of inadequate documentation. MEEB characterizes the invoice setting out the fees as block billing which renders it difficult to distinguish between successful and unsuccessful claims. MEEB also requests a reduction of any lodestar amount based on the results obtained and the size of

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awards in similar cases. After conducting a hearing, this court took the motion (Docket Entry # 85) under advisement. With plaintiff having submitted a second affidavit in response to a recent Procedural Order, the matter is ripe for review.


Plaintiff, a resident of the Pondview condominiums in Lynn, Massachusetts, instituted this action in February 2009 seeking redress for purportedly unfair debt collection activities by MEEB to collect condominium, loan payback charges and late fees as well as attorney's fees from plaintiff on behalf of MEEB's client, the Pondview Condominium Trust ("Pondview"). Created under a September 1986 Declaration of Trust (Ex. B), Pondview consists of a group of trustees that form the governing body of the Pondview condominiums. Plaintiff's parents purchased unit 104 in 1986 and unit 105 in 1995 at the complex. After their deaths in 2002 and by the spring of 2003 plaintiff held title to both units. The condominium complex consisted of 19 units and plaintiff's monthly payments amounted to almost 10% of the incoming fees for the complex.

Under the Declaration of Trust, a Master Deed and Massachusetts General Laws chapter 183A ("chapter 183A"), Pondview had the ability and the authority to assess condominium fees, attorney's fees, late charges and costs of collection against a unit owner such as plaintiff. See Mass. Gen. L. ch.

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183A, § 6(a)(ii) & 6(b); (Ex. B, Art. V, § 5.3(C)). A number of years before Pondview retained MEEB as its attorney, Pondview instituted a policy imposing a $25.00 late fee for condominium fees received after the 15th of each month. After three consecutive months of nonpayment, Pondview's stated policy was to undertake legal action and file suit against the owner.

In the summer and fall of 2004, plaintiff fell behind in the payment of assessments, late fees and loan payback charges for both units. He did not agree with certain late fees and refused to pay them.1 By the end of March 2005, plaintiff had not paid condominium fees, loan payback charges and certain late fees for January, February and March for both units. The nonpayment led to Pondview's decision to file suit.

In late March 2005, Pondview hired MEEB as its attorney. In late April 2005, MEEB, on behalf of its client Pondview, filed two collection suits against plaintiff, as a unit owner, in the Massachusetts District Court Department (Lynn Division) ("Lynn District Court"). MEEB filed these and an additional seven collection suits in Lynn District Court except for the last collection suit filed in September 2008 in the Massachusetts

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Superior Court Department (Essex County).

Beginning in May 2005, MEEB communicated with plaintiff's mortgagees without obtaining plaintiff's consent.2 See 15 U.S.C. § 1692c(b). Section six of chapter 183A imposes a requirement on a condominium association, such as Pondview, to send a letter "to the unit owner" when any portion of a unit owner's share of common expenses is delinquent for at least 60 days ("60 day letter").

A November 2012 opinion by this court details MEEB's vigorous advocacy to collect the amounts plaintiff owed, including attorney's fees, from late March 2005 to September 2008.3 In April 2007, plaintiff's attorney filed an appearance in one of the collection suits and an appearance in another collection suit three weeks later. Plaintiff's attorney represented plaintiff in these state court actions without compensation. He received a one third contingent fee for representing plaintiff in connection with a counterclaim filed in one of the state court lawsuits.

Plaintiff filed this suit on February 3, 2009. The two count complaint sets out violations of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692 ("section 1692") in

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Count One and section nine of Massachusetts General Laws chapter 93A ("chapter 93A") in Count Two. The FDCPA has a one year statute of limitations. 15 U.S.C. § 1692k(d). The delay in filing suit sharply curtailed the timely FDCPA violations purportedly committed by MEEB. One of plaintiff's two theories of recovery under chapter 93A, which has a four year limitations period, was that the untimely FDCPA violations constituted per se violations of chapter 93A. As set out in the trial brief, plaintiff sought actual damages in the amount of $314,552. Although the multitude of alleged FDCPA violations required extensive findings and conclusions, plaintiff eventually recovered $800.00 in statutory damages under Count One after a non-jury trial and post trial motions. The absence of "trade or commerce" within the meaning of section 2(a) of chapter 93A precluded an award under chapter 93A. (Docket Entry # 77, pp. 9-18).

The statutory damages award arose from the following three FDCPA violations: (1) MEEB violated section 1692c(b), which proscribes a debt collector's communications with third parties, by sending a May 13, 2008 letter directly to an attorney representing a mortgagee on an April 2005 mortgage for unit 104 (Ex. 69); (2) MEEB violated section 1692c(a)(2) by sending plaintiff, as opposed to his attorney, a 60 day letter dated June 30, 2008 (Ex. 50); and (3) MEEB violated section 1692c(a)(2) by

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sending plaintiff, as opposed to his attorney, a 60 day letter dated September 16, 2008 (Ex. 76). The chapter 93A claims interconnected legally and factually with these successful FDCPA violations and the similar, albeit untimely, FDCPA purported violations.

Notwithstanding the relatively small damages award, the case was extremely hard fought on both sides. The strong willed adversarial nature of the case increased the complexity and number of arguments presented. The accounting and tracking of amounts properly owed contributed to the factual complexity of the case. Indeed, this court issued a lengthy opinion addressing those issues and a second opinion on reconsideration.

Plaintiff points out that representing him "posed special challenges" and cites to a motion in limine to exclude plaintiff's criminal record. (Docket Entry ## 38, 43, 86). This court allowed the motion over MEEB's objection.

Recognizing the lack of success on the chapter 93A claim, plaintiff reduced by half the amount of time charged for entries that included both chapter 93A and FDCPA work.4 He also eliminated the time spent drafting a summary judgment motion that he did not file. Plaintiff's counsel segregated time spent on

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core from non-core tasks and reduced his normal $250 hourly rate by one third for the latter tasks. For billing entries that reflected work spent on core as well as non-core tasks, plaintiff's counsel reduced the fee by 1/6. The actual invoice for counsel's work for the entire time period at his normal hourly rate of $250.00 totaled $119,849.03 for 541.15 hours of work. As a result of these reductions, plaintiff is seeking a reduced fee award of $59,924.52.


I. Attorney's Fees

The FDCPA entitles a successful plaintiff to an award of "the costs of the action, together with a reasonable attorney's fee as determined by the court." 15 U.S.C. § 1692k(a)(3). Where, as here, a plaintiff obtained an award of statutory damages, an attorney's fee award "is obligatory." French v. Corporate Receivables, Inc., 489 F.3d 402, 403 (1st Cir. 2007).

Both parties utilize a lodestar calculation to arrive at their proposed fee awards. Adhering to this reasonable position, see Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich LPA, 559 U.S. 573, 598-599 n.16 (2010) ("[m]any District Courts apply a lodestar method, permitting downward adjustments in appropriate circumstances" in FDCPA cases); Schlacher v. Law Offices of Phillip J. Rotche & Associates, P.C., 574 F.3d 852, 856 (7th Cir. 2009) (noting in FDCPA case that "district court generally begins

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by calculating the lodestar"); Camacho v. Bridgeport Financial, Inc., 523 F.3d 973, 982 (9th Cir. 2008) (remanding FDCPA fee award in order for district court to calculate fee under lodestar method); see also Garcia-Rubiera v. Fortuno, 727 F.3d 102, 116 (1st Cir. 2013) ("district court can hardly go wrong in selecting the so-called lodestar method when...

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