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Swike v. Med-1 Solutions, LLC

United States District Court, S.D. Indiana, Indianapolis Division

May 9, 2018

ERIN SWIKE, Plaintiff,
MED-1 SOLUTIONS, LLC, Defendant.


          Hon. Jane Magntts-Stinson, Chief Judge United States District Court.

         Presently pending before the Court is Plaintiff Erin Swike's Motion for Attorney's Fees and Costs. [Filing No. 32.] Following her acceptance of Defendant Med-1 Solutions, LLC's (“Med-1”) offer of judgment in the total amount of $4, 000, Ms. Swike filed her request for $31, 220.89 in attorney's fees and costs pursuant to 15 U.S.C. §1692k(a)(3). [Filing No. 32.] Defendant opposes Ms. Swike's Motion. [Filing No. 35.] As discussed below, the Court finds the hourly rate requested by Ms. Swike's counsel to be excessive under the circumstances. Accordingly, the Court GRANTS IN PART and DENIES IN PART Ms. Swike's Motion and awards Ms. Swike a total of $29, 011.39 in fees and costs.



         On May 8, 2017, Ms. Swike filed her Complaint, alleging that Med-1 violated 15 U.S.C. § 1692c(c) of the Fair Debt Collection Practices Act (“FDCPA”). [Filing No. 1.] Thereafter, Med-1 filed a Motion to Dismiss for Lack of Subject Matter Jurisdiction. [Filing No. 14.] The Court denied Med-1's motion on September 15, 2017. [Filing No. 23.] On October 10, 2017, following the Court's denial of the Motion to Dismiss, Ms. Swike accepted an offer of judgment for $1, 000 in statutory damages and $3, 000 in actual damages. [Filing No. 24.] The accepted judgment leaves it to the Court to determine an award of reasonable attorney's fees and costs. [Filing No. 24-1.] Ms. Swike seeks $615.89 in costs and $30, 650 in attorney's fees based upon rates of $595 per hour for attorney David Philipps, $585 per hour for attorney Mary Philipps, and $295 for attorney Angie Robertson. [Filing No. 32 at 11.]

         Mr. Philipps has been practicing law since 1987 and has been litigating FDCPA cases since the early 1990s. [Filing No. 32-5 at 2-3; Filing No. 32-5 at 12.] He has publicly presented on issues involving the FDCPA at conferences across the United States and is a founding member of the National Association for Consumer Advocates, serving on its Board of Directors since 2013. [Filing No. 32-5 at 3-9.] Ms. Philipps was admitted to the bar in 1987 and has a similar practice to that of Mr. Philipps. [Filing No. 32-5 at 7.] Ms. Robertson is an associate who has been practicing since 2010. [Filing No. 32-5 at 7.] Three practitioners, two consumer protection attorneys from Chicago and one Indianapolis commercial litigator, have each attested to the reasonableness of the claimed rates. [Filing No. 32-6; Filing No. 32-7; Filing No. 32-8.]

         On December 13, 2017, Ms. Swike filed her motion for Motion for Attorney's Fees and Costs. [Filing No. 32.] The Motion is fully briefed and ripe for decision.



         Ms. Swike argues that her fee request is reasonable because her attorneys have previously received fee awards at the requested rates, her attorneys are highly experienced at litigating FDCPA cases, and she achieved complete success on her claims. [Filing No. 32 at 7-10.]

         In response, Med-1 does not challenge the hours spent on this matter, but argues that each of the claimed rates is excessive. Specifically, Med-1 requests that the Court reduce Mr. Philipps' rate from $595 to $275 per hour; Ms. Philipps' rate from $585 to $275 per hour; and Ms. Robertson's rate from $295 to $175 per hour. In support, Med-1 argues that the requested hourly rates are unreasonable because other attorneys in recent FDCPA claims received far lower hourly rates than Ms. Swike's requested rates and because the FDCA claim in this case was “simple and uncomplicated.” [Filing No. 35 at 2-4.] Med-1 requests that the Court award hourly rates of $275 per hour for David Philipps and Mary Philipps and $175 per hour for Angie Robertson. [Filing No. 35 at 4.]

         In reply, Ms. Swike argues that her attorneys are far more experienced than the attorneys who received lower hourly rates in other FDCPA cases. [Filing No. 36 at 3.] Ms. Swike also argues that the case was made more complicated by Med-1's decision to file its unsuccessful Motion to Dismiss. [Filing No. 36 at 5-6.]

         Section 1692k of the FDCPA provides that “any debt collector who fails to comply with any provision of this subchapter with respect to any person is liable to such person in an amount equal to the sum of . . . the costs of the action, together with a reasonable attorney's fee as determined by the court.” 15 U.S.C. § 1692k(a). The Court “begins the fee calculation by computing a ‘lodestar': the product of the hours reasonably expended on the case multiplied by a reasonable hourly rate.” Montanez v. Simon, 755 F.3d 547, 553 (7th Cir. 2014). Because the parties do not dispute that the number of hours Ms. Swike's attorneys worked were reasonable (the first half of the lodestar calculation), the sole task of the Court is to determine the reasonableness of the hourly rates. The lodestar calculation produces a “presumptively reasonable fee, ” which may be adjusted based on factors not accounted for by the award calculation. Id. (citing Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)).

         The plaintiff bears the burden of proving that the requested hourly rate is reasonable and “in line with those prevailing in the community.” Pickett v. Sheridan Health Care Ctr., 664 F.3d 632, 640 (7th Cir. 2011) (quoting Blum v. Stenson, 465 U.S. 886, 895 n.11 (1984)). The best evidence is “an attorney's actual billing rate for similar litigation.” Montanez, 755 F.3d at 554 (internal quotation omitted). A plaintiff may also prove the reasonableness of a requested rate with, for example, evidence of attorney's fee awards in previous cases and evidence of the rates of similarly experienced attorneys performing similar work. Id.Not all evidence should be treated equally, however. Courts may properly discount “conclusory affidavits from attorneys merely opining on the reasonableness of another attorney's fee, ” evidence “involv[ing] different markets, ” and prior awards “based on compromises between parties.” Id. (internal alterations and quotations omitted). Moreover, “while evidence of fee awards in prior similar cases must be considered by a district court as evidence of an attorney's market rate, such evidence is not the sine qua non of that attorney's market rate-for each case may present its own special set of circumstances and problems.” Pickett, 664 F.3d at 646 (quoting Uphoff v. Elegant Bath, Ltd., 176 ...

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