Valencia v. Affiliated Group, Inc.

• Decision Date: 21 September 2009
• Docket Number: Case No. 07-61381-CIV.
• Citation: 674 F.Supp.2d 1300
• Parties: Nancy M. VALENCIA, Plaintiff, v. The AFFILIATED GROUP, INC., Defendant.
• Court: U.S. District Court — Southern District of Florida

674 F.Supp.2d 1300

Nancy M. VALENCIA, Plaintiff, v. The AFFILIATED GROUP, INC., Defendant.

Case No. 07-61381-CIV.

United States District Court, S.D. Florida.

September 21, 2009.

Donald A. Yarbrough, Fort Lauderdale, FL, for Plaintiff.

David Palmer Hartnett, Barbara Fernandez, Hinshaw & Culbertson, LLP, Miami, FL, for Defendant.

JUDGMENT ON PLAINTIFF'S VERIFIED MOTION FOR AWARD OF COSTS AND ATTORNEY'S FEES

KENNETH A. MARRA, District Judge.

This cause is before the Court upon the Report and Recommendation of the Magistrate Judge, filed October 21, 2009 (DE 67). The Court has reviewed the record de novo, considering the Plaintiffs Verified Motion for an Award of Costs and Attorney's Fees (DE 37), the Defendant's Response in Opposition to Plaintiffs Motion (DE 44), the Report and Recommendation of the Magistrate Judge, and the entire file. Noting that no timely objections have been filed, for the reasons stated in the Report and Recommendation and upon independent review, it is ORDERED AND ADJUDGED as follows:

1. The Magistrate Judge's Report and Recommendation (DE 67) is hereby ADOPTED;

2. Plaintiffs Verified Motion for an Award of Costs and Attorney's Fees (DE 37) is GRANTED IN PART and DENIED IN PART; and

3. Plaintiff is hereby awarded attorney's fees in the amount of $2,640 and costs in the amount of $380, for a total award of $3,020, which shall bear post-judgment interest at the rate of 0.40%, for which let execution issue.

REPORT AND RECOMMENDATION

LINNEA R. JOHNSON, United States Magistrate Judge.

THIS CAUSE is before the Court Plaintiffs Verified Motion for Award of Costs and Attorney's Fees (D.E. # 37). The matter was referred to the undersigned United States Magistrate Judge by the Honorable Kenneth M. Marra, United States District Judge for the Southern District of Florida, and is now ripe for judicial review. For the following reasons the undersigned respectfully recommends that said motion be granted in part and denied in part as follows. If the within Report and Recommendation is adopted, Plaintiff should be awarded $2,640 in attorney's fees and $380 in costs, for a combined total attorney's fee and cost award of $3,020.

I. BACKGROUND

Plaintiff, Nancy Valencia ("Valencia" or "Plaintiff"), filed the subject action against Defendant, The Affiliated Group, Inc. ("Affiliated" or "Defendant"), on September 27, 2007, pursuant to the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. ("FDCPA"). Less than two months later, on November 30, 2007, Defendant served Plaintiff with an Offer of Judgment (the "Offer") pursuant to Fed.R.Civ.P. 68. Under the Offer, Defendant agreed to pay Plaintiff damages in the amount of $1,001, one dollar more than the maximum recovery to which Plaintiff was entitled under the statute, plus reasonable attorney's fees and costs to be determined by the Court. Plaintiff did not accept the Offer.

Thereafter, the case proceeded apace with no discovery undertaken and no substantive pleadings filed until July 18, 2008, when Defendant filed its Motion for Summary Judgment and Alternative Motion to Dismiss (D.E. # 10). By this time ten months had passed since the date of Defendant's Offer of Judgment, which offered Plaintiff the maximum statutory damages to which she was entitled. Rather than accepting the Offer, Plaintiff filed two motions for enlargement of time to respond to Defendant's Motion for Summary Judgment and Alternative Motion to Dismiss, an untimely Cross-Motion for Summary Judgment, and a Motion for Extension of Time to Hear Plaintiffs Motion for Summary Judgment.

On September 24, 2008, 2008 WL 4372895, the District Court entered an Omnibus Order which, among other things, granted in part and denied in part Defendant's Motion for Summary Judgment, holding that equitable relief is precluded in private FDCPA actions. Shortly thereafter, on October 7, 2008, the parties entered into a Stipulation as to Liability and Statutory Damages (D.E. # 33). In the Stipulation, entered into "In light of the Court's recent September 24, 2008 Omnibus Order and Opinion," Defendant stipulated as to liability and agreed to pay statutory damages in the amount of $1,000, and attorney's fees in an amount to be determined by the Court. Id. Notably, Plaintiff ended up accepting one dollar less than the amount Defendant offered ten months earlier in the November 30, 2007, Offer of Judgment. The Stipulation was approved by the District Court on the same date (D.E. # 34). The instant Motion for Attorney's Fees followed (D.E. # 37).

II. LEGAL ANALYSIS

By the instant Motion, Plaintiff moves, pursuant to 15 U.S.C. § 1692k(a)(3), for an award of attorney's fees in the amount of $8,078, and costs in the amount of $480, for a total attorney's fee and cost award of $8,558. In support of her request, Plaintiff submits the Declaration of Scott D. Owens ("Owens Dec."), a South Florida attorney whose practice focuses primarily on consumer debt collection cases, and the Declaration of Plaintiffs attorney, Donald Yarbrough ("Yarbrough Dec."). Both Mr. Owens and Mr. Yarbrough opine that the reasonable hourly rate in the relevant community for an attorney of Mr. Yarbrough's experience is $350 per hour, and that the 23.08 hours incurred in representing Plaintiff in this action was reasonable and necessary under the circumstances.

Defendant concedes Plaintiff's entitlement to attorney's fees and costs, but argues the amount sought is unreasonable and not properly recoverable. Plaintiff, instead of filing a reply in support of her Motion, has elected instead to file a Notice of Supplemental Authority (D.E. # 66). In the Notice, Plaintiff directs the Court's attention to the cases of Monica A. Harmon v. Retrieval Masters Creditors Bureau, Inc., Case No. 07-80777-CIV-MIDLEBROOKS/JOHNSON and S. James Wallace v. Collection Information Bureau, Inc., Case No. 07-80941-CIV-HULEY/HOPKINS, both of which address the issue of attorney's fees in the context of a Rule 68 offer of judgment and the Fair Debt Collection Practices Act.

A. ATTORNEY'S FEES

In Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975), the Supreme Court reaffirmed the traditional "American rule" regarding attorney's fees: that a prevailing party may not ordinarily recover attorney's fees in the absence of a statute or enforceable contract providing for a fee award. In this instance Plaintiff relies on statutory support to justify her attorney's fees request.

Congress has made specific and explicit provisions for the allowance of attorney's fees under selected statutes granting or protecting various federal rights. Id. at 260, 95 S.Ct. 1612. The Fair Debt Collection Practices Act is one such statute, and directs courts to award reasonable attorney's fees and costs to prevailing plaintiffs. 15 U.S.C. § 1692k(a)(3). The Act provides that in addition to damages, "any debt collector who fails to comply with any provision of this subchapter with respect to any person is liable to such person [for damages] ... (3) [and] in the case of any successful action to enforce the foregoing liability, the costs of the action, together with a reasonable attorney's fee as determined by the court...." Id. The awarding of such fees to prevailing FDCPA plaintiffs is mandatory. In re Martinez, 266 B.R 523, 537 (Bankr.S.D.Fla.), aff'd, 271 B.R. 696 (S.D.Fla.2001)(noting that attorney's fees under the FDCPA should not be construed as a special or discretionary remedy, "`rather the [FDCPA] mandates an award of attorney's fees as a means of fulfilling Congress' intent that the [FDCPA] should be enforced by debtors acting as private attorneys general.'")(emphasis in original)(quoting Graziano v. Harrison, 950 F.2d 107, 113 (3d Cir.1991)). Accord Emanuel v. American Credit Exchange, 870 F.2d 805, 809 (2d Cir.1989); Edwards v. National Business Factors, Inc., 897 F.Supp. 458, 459 (D.Nev.1995).

The purpose behind the prevailing party attorney's fee provision is to encourage competent attorneys to work on cases that might otherwise be avoided. See Thorpe v. Collection Information Bureau, Inc., 963 F.Supp. 1172, 1174 n. 2 (S.D.Fla. 1996). The determination of what constitutes a reasonable fee is left to the sound discretion of the district court and will not be reversed absent abuse of discretion. See Davis v. Fletcher, 598 F.2d 469, 470 (5th Cir.1979).¹

Defendant does not dispute that Plaintiff is a prevailing party under the FDCPA and presumptively entitled to fees. Defendant does, however, take issue with the amount of fees requested on several grounds. First, Defendant contends that Rule 68 precludes Plaintiff from recovering any attorney's fees incurred after the date of the November 30, 2007 Offer of Judgment. Next, Defendant takes issue with the hourly rate sought, claiming $350 per hour is "unreasonable" and "not customary" in the relevant community for the type of action involved. Finally, Defendant points to enumerated instances of excessive billing practices and the limited success Plaintiff achieved and, on this basis, asks the Court to employ either an hour-by-hour analysis or an across-the-board cut to reduce the amount of lodestar hours claimed. Each of these arguments shall be addressed in turn.

1. The Effect Of Rule 68 On The Attorney's Fee Calculation

Defendant argues that Rule 68 precludes Plaintiff from recovering any attorney's fees incurred after the date of the November 30, 2007 Offer of Judgment. The Court disagrees, concluding that in the instant case, where the FDCPA's attorney's fee provision explicitly distinguishes attorney's fees from awardable "costs," Rule 68 does not preclude Plaintiff from recovering attorney's fees incurred after the date of the Offer.

Rule 68 provides, in relevant part, as follows:

(d) Paying Costs After an Unaccepted Offer. If the judgment that the offeree finally obtains is not more favorable than the unaccepted offer, the offeree must pay the costs...