Crescenzo v. Healthcare Revenue Recovery Group, LLC

842 F. Supp. 2d 1340, 2012 WL 291431, 2012 U.S. Dist. LEXIS 14243
CourtDistrict Court, S.D. Florida
DecidedJanuary 31, 2012
DocketCase No. 11-60384-CIV
StatusPublished

This text of 842 F. Supp. 2d 1340 (Crescenzo v. Healthcare Revenue Recovery Group, LLC) is published on Counsel Stack Legal Research, covering District Court, S.D. Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Crescenzo v. Healthcare Revenue Recovery Group, LLC, 842 F. Supp. 2d 1340, 2012 WL 291431, 2012 U.S. Dist. LEXIS 14243 (S.D. Fla. 2012).

Opinion

ORDER ON MOTION FOR ATTORNEYS FEES AND COSTS

DONALD M. MIDDLEBROOKS, District Judge.

THIS CAUSE comes before the Court on Plaintiffs Motion for Attorneys Fees [1342]*1342and Costs (“Motion”) (DE 25), filed August 22, 2011. I have reviewed the instant Motion and am otherwise fully advised in the premises.

Before turning to Plaintiffs Motion, it is necessary to briefly reflect upon the facts of this matter. On February 22, 2011, Plaintiff filed her Complaint alleging Defendant left a message on her voicemail that failed to disclose Defendant’s status as a debt collector in violation of 15 U.S.C. § 1692e(ll) of the Fair Debt Collection Practices Act (“FDCPA”) (see DE 1 at 4-5) and failed to make a meaningful disclosure of Defendant’s identity as a debt collector in violation of 15 U.S.C. § 1692d(6) of the FDCPA (id. at 5-6). Additionally, Plaintiff claimed Defendant violated section 227(b)(1)(A)(iii) of the Telephone Consumer Protection Act (“TCPA”) by placing a non-emergency telephone call to Plaintiff using an automatic telephone dialing system or pre-recorded or artificial voice. (Id. at 6-7 (citing 47 U.S.C. § 227(b)(1)(A)(iii))). The Parties filed a Stipulation of Dismissal (DE 23) on June 20, 2011, and I dismissed Plaintiffs two claims under the FDCPA with prejudice and Plaintiffs claim under the TCPA without prejudice. (See DE 24).

Pursuant to section 1692k(a)(3) of the FDCPA, in a case where a debt collector is found liable for violating any provision of the FDCPA, the debt collector is also liable to the prevailing party for “the costs of the action, together with a reasonable attorney’s fee as determined by the court.” 15 U.S.C. § 1692k(a)(3) (emphasis added). In her Motion for Fees and Costs, Plaintiff moves the Court to award her $6,261.50 in attorneys fees because Donald Yarbrough (“Yarbrough”), her attorney, spent 17.89 hours on this matter and bills at an hourly rate of $350.00. (See DE 25 at ¶¶ 8-10).

In order to determine whether the amount sought by Plaintiff is reasonable, I am bound to utilize the “lodestar” method, which was first articulated in Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983), and adopted by the Eleventh Circuit in Norman v. Hous. Auth. of Montgomery, 836 F.2d 1292 (11th Cir.1988). In Hensley, the Supreme Court held that “the most useful starting point for determining the amount of a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate” because this calculation “provides an objective basis on which to make an initial estimate of the value of a lawyer’s services.” Id. at 433, 103 S.Ct. 1933. The party seeking an award of fees bears the burden of substantiating his fee; accordingly, he must submit evidence supporting the hours worked and the hours claimed. Johnson v. Univ. Coll. of Univ. of Ala. in Birmingham, 706 F.2d 1205, 1207 (11th Cir.1983) (citing Carr v. Blazer Fin. Servs., Inc., 598 F.2d 1368, 1371 (5th Cir.1979)).

1. Reasonable Hourly Rate

First, I must determine whether Yarbrough’s hourly rate of $350.00 is reasonable. An hourly rate is reasonable if it is in line with “the prevailing market rate in the relevant legal community for similar services” performed “by lawyers of reasonably comparable skills, experience and reputation.” Norman v. Hous. Auth. of Montgomery, 836 F.2d 1292, 1299 (11th Cir.1988) (citing Blum v. Stenson, 465 U.S. 886, 895, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984)). Yarbrough bears the burden of proving, by direct or opinion evidence, that his requested hourly rate of $350.00 is in line with prevailing market rates. Norman, 836 F.2d at 1299.

Defendant objects to Yarbrough’s hourly rate of $350.00 (see DE 30 at 10) and argues that Yarbrough’s rate “should be no more than $300.00 an hour.” This Court “is itself an expert on the question” [1343]*1343of whether an attorney’s rate is reasonable, and, I agree with Defendant that an hourly rate of $350.00 is excessive. Loranger v. Stierheim, 10 F.3d 776, 781 (11th Cir.1994) (quotation marks omitted). In determining whether a rate is reasonable, I “may consider [my] own knowledge and experience concerning reasonable and proper fees and may form an independent judgment either with or without the aid of witnesses as to value.” Loranger v. Stierheim, 10 F.3d 776, 781 (11th Cir.1994) (quotation marks omitted).

The above-styled action involved a simple and straightforward FDCPA claim, which was neither novel nor difficult. While Yarbrough has experience litigating FDCPA cases, experience alone does not establish that his rate is reasonable. An attorney who lacked Yarbrough’s experience would have possessed the skills necessary to represent Plaintiff in this matter, especially considering the Parties settled almost immediately and damages were capped at $1,000.00. Even Yarbrough states that “[f]or approximately the last 6 years” he has been awarded $300.00 per hour for his work in FDCPA cases, and, only recently, he has been awarded $350.00 per hour for the work he performed in a few matters. (Yarbrough Aff. at 6). After carefully considering Yarbrough’s Affidavit and the record, I find a rate of $300.00 is reasonable and in line with the prevailing market rate of a lawyer with reasonably comparable skills, experience, and reputation in this area.

2. Hours Reasonably Expended

Yarbrough also bears the burden of documenting his time expenditures and may submit opinions as to their reasonableness. Norman, 836 F.2d at 1303. “In a statutory fee case, the party opposing the fee award then has the burden to challenge, by affidavit or brief with sufficient specificity to give fee applicants notice, the reasonableness of the requested fee.” Hensley, 461 U.S. at 433, 103 S.Ct. 1933; Norman, 836 F.2d at 1301.

Before determining whether the hours spent by Yarbrough were unreasonable, I first must address the Parties’ disagreement concerning whether Plaintiff is even entitled to recover for the hours Yarbrough spent litigating this matter after Defendant made its settlement offer.

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842 F. Supp. 2d 1340, 2012 WL 291431, 2012 U.S. Dist. LEXIS 14243, Counsel Stack Legal Research, https://law.counselstack.com/opinion/crescenzo-v-healthcare-revenue-recovery-group-llc-flsd-2012.