NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ______________
No. 19-1055 _______________
JOANNE SCANNO, on behalf of herself and all other similarly situated, Appellant v.
F.H. CANN & ASSOCIATES, INC.
______________
Appeal from the United States District Court for the District of New Jersey (D.C. No. 2-16-cv-05943) District Judge: Hon. Madeline Cox Arleo ______________
Submitted under Third Circuit L.A.R. 34.1(a) November 21, 2019 ______________
Before: CHAGARES, MATEY, and FUENTES, Circuit Judges.
(Opinion filed: December 4, 2019) ______________
OPINION * ______________
FUENTES, Circuit Judge.
* This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7, does not constitute binding precedent. This appeal arises out of Joanne Scanno’s efforts to recover $27,333 in attorney’s
fees under the Fair Debt Collection Practices Act (“FDCPA”) for a putative class-action
lawsuit that was resolved via settlement on an individual basis. Because we are satisfied
that the District Court did not err in accepting the report and recommendation of the
Magistrate Judge and in granting in part and denying in part Scanno’s motion for
attorney’s fees, we will affirm.
I.
In September 2016, Scanno, on behalf of herself, and on behalf of a putative class
of others similarly situated, sued F.H. Cann & Associates, Inc. (“F.H. Cann”) under the
FDCPA for deceptive debt collection practices. After a scheduling conference in
February 2017, F.H. Cann moved for leave to amend its answer and, without leave from
the District Court, moved to stay proceedings and compel arbitration. Scanno opposed
the motion to amend and the District Court stayed briefing on the motion to compel
arbitration.
In June 2017, F.H. Cann offered to settle the case for $2,500, inclusive of the
maximum statutory award of $1,000, attorney’s fees, and costs. Scanno’s counsel
rejected the offer, stating that “counsel would have received only approximately $1,000,
although the attorney’s fees alone were $9,250.00 at that time.” 1 Three months later,
F.H. Cann offered Scanno $4,000 to settle, inclusive of the maximum statutory award,
attorney’s fees, and costs. Scanno again rejected the offer, noting that “the attorney’s
1 App. 63. 2 fees alone were $17,100” because counsel had spent additional time opposing F.H.
Cann’s motion to amend and researching issues related to the motion to compel
arbitration. 2 Days after, the parties settled the matter on an individual basis for the same,
maximum statutory award of $1,000 and agreed that Scanno would submit a motion for
reasonable attorney’s fees.
Thereafter, Scanno filed her motion, seeking attorney’s fees in the amount of
$27,333. The District Court referred the motion to a Magistrate Judge, who issued a
report recommending that the District Court grant in part and deny in part the motion, and
reduce the fees award to $10,418. The District Court adopted the report and
recommendation and awarded attorney’s fees in the amount of $10,418. It found that
Scanno’s counsel rejected a settlement offer in June 2017, only to reach the same
resolution months later, and that counsel’s “significant experience” litigating FDCPA
cases rendered “certain billing entries . . . excessive.” 3 This appeal followed.
II. 4
“We review the District Court’s attorneys’ fees award for abuse of discretion
‘which can occur if the judge fails to apply the proper legal standard or to follow proper
procedures in making the determination, or bases an award upon findings of fact that are
clearly erroneous.’” 5
2 App. 64. 3 App. 15–16. 4 The District Court had jurisdiction under 28 U.S.C. § 1331. We have jurisdiction under 28 U.S.C. § 1291. 5 In re Rite Aid Corp. Sec. Litig., 396 F.3d 294, 299 (3d Cir. 2005) (quoting In re Cendant Corp. PRIDES Litig., 243 F.3d 722, 727 (3d Cir. 2001)); see also Hensley v. 3 III.
Under the FDCPA, a prevailing plaintiff may recover “the costs of the action,
together with a reasonable attorney’s fee as determined by the court,” 6 and “in a typical
case . . . the court should determine what constitutes a reasonable fee in accordance with
the substantial Supreme Court precedent pertaining to the calculation of reasonable
attorney’s fees.” 7
In arriving at a reasonable fee, courts “must start by taking the amount of time
reasonably expended by counsel for the prevailing party on the litigation, and compensate
that time at a reasonable hourly rate to arrive at the lodestar.” 8 Although “the lodestar
amount ‘is presumed to be the reasonable fee’ to which counsel is entitled,” 9 the District
Court may reduce the fee award “to account for . . . limited success” on the merits of the
claim or for other factors, such as the experience of counsel and the complexity of the
legal issues involved. 10 In addition, the District Court should exclude hours that are
“excessive, redundant, or otherwise unnecessary.” 11
Eckerhart, 461 U.S. 424, 437 (1983) (noting that the “district court has discretion in determining the amount of a fee award”). 6 15 U.S.C. § 1692k(a)(3). 7 Graziano v. Harrison, 950 F.2d 107, 114 (3d Cir. 1991). “In general, a reasonable fee is one which is ‘adequate to attract competent counsel, but which do[es] not produce windfalls to attorneys.’” Pub. Interest Research Grp. of N.J., Inc. v. Windall, 51 F.3d 1179, 1185 (3d Cir. 1995) (quoting Student Pub. Interest Research Grp. of N.J., Inc. v. AT&T Bell Lab., 842 F.2d 1436, 1448 (3d Cir. 1988)). 8 Brytus v. Spang & Co., 203 F.3d 238, 242 (3d Cir. 2000). 9 Id. at 243 (quoting Pennsylvania v. Del. Valley Citizens’ Council for Clean Air, 478 U.S. 546, 564 (1986)). 10 Hensley, 461 U.S. at 430 n.3, 436–37. 11 Id. at 433–34. 4 Scanno first challenges the District Court’s conclusion that she had only limited
success on the merits of her case, arguing that her total recovery, including attorney’s
fees, increased from June 2017 to September 2017. 12
The reasonableness of the fee award on the merits of the case is clear from the
District Court’s reasoning. The District Court observed that, in June 2017, Scanno
rejected a settlement offer which allowed her to recover the maximum statutory award of
$1,000, only to incur twenty-five hours of additional legal services and accept the very
same offer three months later. Scanno’s rejection of the June 2017 settlement offer
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ______________
No. 19-1055 _______________
JOANNE SCANNO, on behalf of herself and all other similarly situated, Appellant v.
F.H. CANN & ASSOCIATES, INC.
______________
Appeal from the United States District Court for the District of New Jersey (D.C. No. 2-16-cv-05943) District Judge: Hon. Madeline Cox Arleo ______________
Submitted under Third Circuit L.A.R. 34.1(a) November 21, 2019 ______________
Before: CHAGARES, MATEY, and FUENTES, Circuit Judges.
(Opinion filed: December 4, 2019) ______________
OPINION * ______________
FUENTES, Circuit Judge.
* This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7, does not constitute binding precedent. This appeal arises out of Joanne Scanno’s efforts to recover $27,333 in attorney’s
fees under the Fair Debt Collection Practices Act (“FDCPA”) for a putative class-action
lawsuit that was resolved via settlement on an individual basis. Because we are satisfied
that the District Court did not err in accepting the report and recommendation of the
Magistrate Judge and in granting in part and denying in part Scanno’s motion for
attorney’s fees, we will affirm.
I.
In September 2016, Scanno, on behalf of herself, and on behalf of a putative class
of others similarly situated, sued F.H. Cann & Associates, Inc. (“F.H. Cann”) under the
FDCPA for deceptive debt collection practices. After a scheduling conference in
February 2017, F.H. Cann moved for leave to amend its answer and, without leave from
the District Court, moved to stay proceedings and compel arbitration. Scanno opposed
the motion to amend and the District Court stayed briefing on the motion to compel
arbitration.
In June 2017, F.H. Cann offered to settle the case for $2,500, inclusive of the
maximum statutory award of $1,000, attorney’s fees, and costs. Scanno’s counsel
rejected the offer, stating that “counsel would have received only approximately $1,000,
although the attorney’s fees alone were $9,250.00 at that time.” 1 Three months later,
F.H. Cann offered Scanno $4,000 to settle, inclusive of the maximum statutory award,
attorney’s fees, and costs. Scanno again rejected the offer, noting that “the attorney’s
1 App. 63. 2 fees alone were $17,100” because counsel had spent additional time opposing F.H.
Cann’s motion to amend and researching issues related to the motion to compel
arbitration. 2 Days after, the parties settled the matter on an individual basis for the same,
maximum statutory award of $1,000 and agreed that Scanno would submit a motion for
reasonable attorney’s fees.
Thereafter, Scanno filed her motion, seeking attorney’s fees in the amount of
$27,333. The District Court referred the motion to a Magistrate Judge, who issued a
report recommending that the District Court grant in part and deny in part the motion, and
reduce the fees award to $10,418. The District Court adopted the report and
recommendation and awarded attorney’s fees in the amount of $10,418. It found that
Scanno’s counsel rejected a settlement offer in June 2017, only to reach the same
resolution months later, and that counsel’s “significant experience” litigating FDCPA
cases rendered “certain billing entries . . . excessive.” 3 This appeal followed.
II. 4
“We review the District Court’s attorneys’ fees award for abuse of discretion
‘which can occur if the judge fails to apply the proper legal standard or to follow proper
procedures in making the determination, or bases an award upon findings of fact that are
clearly erroneous.’” 5
2 App. 64. 3 App. 15–16. 4 The District Court had jurisdiction under 28 U.S.C. § 1331. We have jurisdiction under 28 U.S.C. § 1291. 5 In re Rite Aid Corp. Sec. Litig., 396 F.3d 294, 299 (3d Cir. 2005) (quoting In re Cendant Corp. PRIDES Litig., 243 F.3d 722, 727 (3d Cir. 2001)); see also Hensley v. 3 III.
Under the FDCPA, a prevailing plaintiff may recover “the costs of the action,
together with a reasonable attorney’s fee as determined by the court,” 6 and “in a typical
case . . . the court should determine what constitutes a reasonable fee in accordance with
the substantial Supreme Court precedent pertaining to the calculation of reasonable
attorney’s fees.” 7
In arriving at a reasonable fee, courts “must start by taking the amount of time
reasonably expended by counsel for the prevailing party on the litigation, and compensate
that time at a reasonable hourly rate to arrive at the lodestar.” 8 Although “the lodestar
amount ‘is presumed to be the reasonable fee’ to which counsel is entitled,” 9 the District
Court may reduce the fee award “to account for . . . limited success” on the merits of the
claim or for other factors, such as the experience of counsel and the complexity of the
legal issues involved. 10 In addition, the District Court should exclude hours that are
“excessive, redundant, or otherwise unnecessary.” 11
Eckerhart, 461 U.S. 424, 437 (1983) (noting that the “district court has discretion in determining the amount of a fee award”). 6 15 U.S.C. § 1692k(a)(3). 7 Graziano v. Harrison, 950 F.2d 107, 114 (3d Cir. 1991). “In general, a reasonable fee is one which is ‘adequate to attract competent counsel, but which do[es] not produce windfalls to attorneys.’” Pub. Interest Research Grp. of N.J., Inc. v. Windall, 51 F.3d 1179, 1185 (3d Cir. 1995) (quoting Student Pub. Interest Research Grp. of N.J., Inc. v. AT&T Bell Lab., 842 F.2d 1436, 1448 (3d Cir. 1988)). 8 Brytus v. Spang & Co., 203 F.3d 238, 242 (3d Cir. 2000). 9 Id. at 243 (quoting Pennsylvania v. Del. Valley Citizens’ Council for Clean Air, 478 U.S. 546, 564 (1986)). 10 Hensley, 461 U.S. at 430 n.3, 436–37. 11 Id. at 433–34. 4 Scanno first challenges the District Court’s conclusion that she had only limited
success on the merits of her case, arguing that her total recovery, including attorney’s
fees, increased from June 2017 to September 2017. 12
The reasonableness of the fee award on the merits of the case is clear from the
District Court’s reasoning. The District Court observed that, in June 2017, Scanno
rejected a settlement offer which allowed her to recover the maximum statutory award of
$1,000, only to incur twenty-five hours of additional legal services and accept the very
same offer three months later. Scanno’s rejection of the June 2017 settlement offer
appears to have been driven primarily by counsel’s independent belief that the offer did
not account for all attorney’s fees incurred since the commencement of the litigation. 13
Even considering that Scanno’s counsel brought this suit as a class action, the case was
ultimately settled on an individual basis with no change in Scanno’s recovery from the
June 2017 settlement offer. Therefore, we cannot say that the District Court abused its
discretion in reducing the lodestar by fifty percent. 14
12 The parties do not dispute that $500/hour is a reasonable hourly rate for Scanno’s attorney’s services. 13 Indeed, counsel concedes that the $1,000 maximum statutory award “was likely the same amount that [Scanno] would have received had she accepted the June 15, 2017” offer. Appellant Br. 16. 14 See Hensley, 461 U.S. at 436–37 (noting that district courts have the discretion to “reduce the award to account for . . . limited success”); see also Paz v. Portfolio Recovery Assocs., 924 F.3d 949, 955–56 (7th Cir. 2019) (concluding that the district court did not abuse its discretion in substantially reducing attorney’s fees in an FDCPA action where counsel rejected a settlement offer above the maximum statutory award, proceeded to trial despite a slim chance of success, and ultimately recovered only $1,000 in statutory damages). 5 Scanno also challenges the District Court’s sixty percent reduction of the lodestar
regarding the preparation of the fee petition, arguing that time spent on the fee petition
was not excessive and that she had more than limited success on the petition. We
disagree.
This Court has held “that the fee reduction rationale of Hensley . . . applies by
force of the Court’s reasoning to fees generated in the litigation of a fee petition, and
compels us to treat the fee petition litigation as a separate entity subject to lodestar and
Hensley reduction analysis.” 15 Here, the District Court properly reduced the lodestar by
sixty percent for time spent preparing the fee petition because the amount of time billed
was excessive given counsel’s “significant experience in this field.” 16
Accordingly, we find no abuse of discretion in the District Court’s reduction of the
fees sought in preparation of the fee petition.
IV.
For the reasons stated above, we will affirm the District Court’s order granting in
part and denying in part Scanno’s motion for attorney’s fees, and awarding total
attorney’s fees and costs in the amount of $10,418.
15 Institutionalized Juveniles v. Sec’y of Pub. Welfare, 758 F.2d 897, 924 (3d Cir. 1985). 16 App. 16; see Maldonado v. Houstoun, 256 F.3d 181, 187–88 (3d Cir. 2001) (reducing number of hours claimed in preparing fee petition due to excessiveness). Further, although not explicitly relied upon by the District Court, we find no error in the Magistrate Judge’s conclusion that Scanno had limited success on the fee petition. 6