Pinner v. Schmidt

E.D. Louisiana

Pinner v. Schmidt

617 F. Supp. 335, 1985 U.S. Dist. LEXIS 18369

CourtDistrict Court, E.D. Louisiana

DecidedJune 28, 1985

DocketCiv. A. No. 84-2059

StatusPublished

This text of 617 F. Supp. 335 (Pinner v. Schmidt) is published on Counsel Stack Legal Research, covering District Court, E.D. Louisiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Pinner v. Schmidt, 617 F. Supp. 335, 1985 U.S. Dist. LEXIS 18369 (E.D. La. 1985).

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Opinion

[336]*336ORDER AND REASONS

CHARLES SCHWARTZ, Jr., District Judge.

This matter came before the Court upon motion of plaintiff to determine the quantum of attorney’s fees and costs to be awarded as against defendant Chilton [sometimes referred to as the “Credit Bureau”], plaintiff having prevailed on his claims against Chilton under the Fair Credit Reporting Act [“FCRA”], 15 U.S.C. §§ 1681n & 1681o, after trial by jury on May 6-8, 1985.

Section 1681n of the FCRA provides:

Any consumer reporting agency ... which willfully fails to comply with [the FCRA] with respect to any consumer is liable to that consumer in an amount equal to the sum of—

(1) [actual damages];

(2) [punitive damages]; and

(3) in the case of any action to enforce any liability under this section, the costs of the action together with reasonable attorney’s fees as determined by the court.

Section 1681o of the FCRA provides:

Any consumer reporting agency ... which is negligent in failing to comply with [the FCRA] with respect to any consumer is liable to that consumer in an amount equal to the sum of—

(1) [actual damages];

(2) in the case of any successful action to enforce any liability under this section, the costs of the action together with reasonable attorney’s fees as determined by the court.

The jury having found that Chilton failed to observe the requirements of the FCRA both negligently and willfully, this Court may assess attorney’s fees against Chilton under either section 1681n or 1681o.

Accordingly, a hearing was held on June 21, 1985 for the purpose of determining the quantum of attorney’s fees. Plaintiff requested attorney’s fees in the amount of $66,666, computed on a contingent basis of one third the total amount awarded to the plaintiff for both actual and punitive damages as against all defendants, or $200,000. As further support for the requested fee, plaintiff submitted an affidavit showing 259 hours of itemized time expended and unitemized time expended of 400 hours. Plaintiff also requests costs of $1,391.82, supported by an affidavit reflecting same.

Chilton challenges certain of the entries recited on the affidavit regarding attorney’s fees and further urges that recoverable fees be limited to time attributable to the successful aspects of plaintiff’s FCRA claim against Chilton. Thus, Chilton urges that recoverable fees be limited to $10,-500.00. It is further urged that recoverable costs be limited to $867.20.

In making its determinations, the Court relieves counsel of the obligation of filing contemporaneous time records, as required by Local Rule 21.16, added June 30, 1983. There is good cause to excuse plaintiff’s counsel from compliance with this rule in light of claims for time expended prior to the adoption of the rule. Moreover, the Court did not accept the face value of the hours claimed by plaintiff’s counsel, as will be explained more fully below, and made its own determinations as to the allowable time for the services rendered. See Appendix A attached.

Thus, the Court has determined that an award of $27,400 attorney’s fees is appropriate in this case and will state with particularity its reasons for this award in accordance with the twelve factors to be considered under Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir.1974). See also Copper Liquor, Inc. v. Adolph Coors Co., 624 F.2d 575 (5th Cir. 1980); In re First Colonial Corp., 544 F.2d 1291 (5th Cir.), cert. denied 431 U.S. 904, 97 S.Ct. 1696, 52 L.Ed.2d 388 (1977). In considering the twelve Johnson criteria, the Court is further cognizant of its duty to pay special heed to Johnson factors numbers (1) the time and labor involved; (5) the customary fee; (8) the amount involved and the results obtained; and (9) the experience, reputation and ability of counsel. [337]*337See Copper Liquor, Inc. v. Adolph Coors Co., supra, 624 F.2d at 583.

The customary fee for a claim of this sort, computed on a contingent basis in the New Orleans area, would be 33%% of the amount recovered. The recovery against the Credit Bureau herein was $133,333.00. Thus, on a contingent basis, a fair and reasonable fee would be the sum of $44,-444.33.

The customary fee for an attorney in the New Orleans area having practiced 33 years, as plaintiffs counsel has, would range between $100 to $150 per hour. Moreover, as detailed in Appendix A attached to and made a part of these findings, the Court finds that plaintiffs counsel reasonably expended 142 hours in prosecution of the claim against Chilton. Thus, the Court computes an attorney’s fee of 142 hours at $100 per hour, amounting to $14,200.00.

In considering the novelty and difficulty of the questions presented in this case, the Court finds that the Credit Bureau made this a difficult, time consuming and arduous case to prosecute and made no concessions to plaintiff’s attorney’s having rarely prosecuted eases in federal court. Regardless of the defendant’s actions, however, case was nonetheless difficult to prove, and this factor would warrant awarding an additional sum of $5000.

Counsel’s preclusion from taking other work and the time limitations imposed by this particular case are set out in counsel’s affidavit. These representations are taken into consideration and form a part of the aforesaid additional allowance of $5000.

With regard to the skill requisite to perform the legal services properly, the Court has heretofore noted that counsel has been practicing for 33 years. The Court further notes counsel was a member of the Board of Editors of the Tulane Law Review and was a law clerk for the Louisiana Supreme Court. Counsel’s trial demeanor and argument before the jury were outstanding. As demonstrated by their award, the jury obviously agreed with the Court’s assessment of this factor. However, counsel was not well versed in practice before this Court, and this has caused the Court to fix the hourly rate at the lower end of the spectrum for customary hourly rates for one of his years of practice. Thus, by adopting a lower hourly rate of $100 per hour, the Court takes into consideration counsel’s relative lack of experience in federal court. However, the Court has liberally construed the time claimed to accomplish each entry on the attorney’s affidavit to counterbalance this conservatism. See Appendix A.

Moreover, counsel has computed his trial time as to all defendants at 28 hours, and this Court allowed 14 hours total time as to Chilton. Instead of applying the hourly rate to this time, plaintiff’s counsel is entitled to an additional $700 for his skill in trial work over and above the hours claimed to have been expended.

The hourly rates allowed by the Court account for the customary fee and whether the fee was taken on a contingent basis.

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