Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Maloy v. Stucky, Lauer & Young, LLP

United States District Court, N.D. Indiana, Fort Wayne Division

December 14, 2018

SAMUEL MALOY on behalf of Himself and others similarly situated, Plaintiff,
v.
STUCKY, LAUER & YOUNG, LLP, Defendant.

          OPINION AND ORDER

          THERESA L. SPRINGMANN CHIEF JUDGE UNITED STATES DISTRICT COURT

         This matter is before the Court on the Plaintiff's, Samuel Maloy, Motion for Attorney Fees and Expenses [ECF No. 32]. The Defendant, Stucky, Lauer & Young, LLP have not filed an objection. Class Counsel requests $30, 000 in attorney's fees and $2, 526.44 in expenses.

         BACKGROUND

         The Plaintiff, on behalf of himself and others similarly situated, filed suit against Stucky, Lauer & Yong, LLP on August 9, 2017 regarding an alleged violation of the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq., [ECF No. 1]. On May 29, 2018, the Court approved the Plaintiff's Motion to Certify Class and for Preliminary Approval of Class Action Settlement [ECF No. 19]. On October 4, 2018, the parties filed a Joint Motion to Certify Class and Final Approval of Class Settlement [ECF No. 27]. The parties indicated that they had entered a Settlement Agreement, which requires the Defendant to pay $1, 000 to the named Plaintiff for his service as class representative and $5, 000 to be distributed among the 889 class members for whom the parties possess valid addresses. (Joint Mot. to Certify Class and Final Approval of Class Settlement at 5.) Pursuant also to the Settlement Agreement, the Defendant agrees not to contest an award of attorney's fees up to $30, 000, and reasonable costs and expenses up to $3, 000 to Class Counsel. (Id., at 4-5.)

         The Court conducted a Fairness Hearing on October 5, 2018 [ECF No. 29], to consider: (i) the fairness, reasonableness, and adequacy of the settlement; (ii) the contents of the Final Order of Approval of Settlement; and (iii) the application of Class Counsel for attorney's fees and costs. On October 25, 2018, the Court granted, in part, the parties' Joint Motion to Certify Class and Final Approval of Class Settlement and requested additional briefing on attorney's fees. (Op. and Order at 6, ECF No. 31.) On November 5, 2018, the Plaintiff filed a Motion for Attorney's Fees and Expenses [ECF No. 32] and an Affidavit in Support of the Motion for Attorney's Fees and Expenses from Plaintiff's attorney Russell S. Thompson [ECF No. 33]. Class Counsel requests that the Court, pursuant to its authority under Federal Rule of Civil Procedure 23(h), award it $30, 000 in attorney's fees and $2, 526.44 in expenses. (Pl.'s Mot. in Supp. of Atty's Fee and Expenses at 1.) In accordance with the parties' Settlement Agreement, the Defendant did not file an objection. (Id., at 2.)

         ANALYSIS

         Courts favor the settlement of attorney's fees between parties. Hensley v. Eckerhart, 461 U.S. 424, 437 (1983). Nevertheless, the Court must evaluate this number to determine its reasonableness. Plaintiffs who prevail under the FDCPA are entitled to an award of costs and reasonable attorney's fees pursuant to 15 U.S.C. § 1692k(a)(3). See Schlacher v. Law Offices of Phillip J. Rotche & Assocs., P.C., 574 F.3d 852, 856 (7th Cir. 2009). This award is mandatory. Zagorski v. Midwest Billing Servs., Inc., 128 F.3d 1164, 1166 (7th Cir. 1997). The general rule for calculating attorney's fee awards under fee shifting statutes is applicable to attorney's fees awards under the FDCPA. Gastineau v. Wright, 592 F.3d 747, 748-49 (7th Cir. 2010). The starting point for calculating awards of attorney's fees is the lodestar method, which requires calculation of a reasonable hourly rate multiplied by the number of hours reasonably expended on the litigation. Johnson v. GDF, Inc., 668 F.3d 927, 929 (7th Cir. 2012).

         The Court may exercise its discretion to “adjust [the lodestar] figure to reflect various factors including the complexity of the legal issues involved, the degree of success obtained, and the public interest advanced by the litigation.” Gastineau, 592 F.3d at 748. “The standard is whether the fees are reasonable in relation to the difficulty, stakes, and outcome of the case.” Connolly v. Nat'l Sch. Bus Serv., Inc., 177 F.3d 593, 597 (7th Cir. 1999) (quoting Bankston v. Illinois, 60 F.3d 1249, 1256 (7th Cir. 1995)). To determine reasonable attorneys' fees, “the district court must demonstrate that it has considered the proportionality of attorneys' fees to the total damage award.” Moriarty ex rel. Local Union No. 727 v. Svec, 429 F.3d 710, 717 (7th Cir. 2005). The Seventh Circuit has mandated that district court orders should “evidence increased reflection before awarding attorney's fees that are large multiples of the damages recovered or multiples of the damages claimed.” Id., at 717-18. Ultimately, the party seeking an award of attorneys' fees bears the burden of proving the reasonableness of the hours worked and the hourly rates claimed. Spegon v. Catholic Bishop of Chi., 175 F.3d 544, 550 (7th Cir. 1999).

         A. Reasonableness of Hourly Rates

         Generally, a reasonable hourly rate for an attorney is based on what the attorney charges and receives in the market from paying clients for the same type of work. Pickett v. Sheridan Health Care Ctr., 664 F.3d 632, 640 (7th Cir. 2011). “The market rate is the rate that lawyers of similar ability and experience in the community normally charge their paying clients for [the] type of work in question.” Owens v. Howe, 365 F.Supp.2d 942, 947 (N.D. Ind. 2005) (internal citations and quotations omitted). A plaintiff bears the burden of producing satisfactory evidence that the hourly rate is reasonable and in line with those prevailing in the community. Calkins v. Grossinger City Autocorp, Inc., No. 01 C 9343, 2003 WL 297516 at *1 (N.D. Ill. Feb. 12, 2013). To satisfy this burden, Class Counsel has provided the Court with a Declaration from attorney Thompson [ECF No. 33] and the 2011 Consumer Law Attorney Fee Survey Report [ECF No. 33-2].

         The Court has reviewed these submissions. First, Thompson's Declaration [ECF No. 33] regarding attorney's fees holds little objective value to the Court. Thompson is not licensed in Indiana nor does he indicate that he has any knowledge of the prevailing rates for FDCPA cases in the Fort Wayne Division. “[A]n attorney's self-serving affidavit alone cannot satisfy the plaintiff's burden of establishing the market rate for that attorney's services.” Owens, 365 F.Supp.2d at 947 (citing Spegon, 175 F.3d at 556). Second, the Court notes that the 2011 Consumer Law Attorney Fee Survey report provided to demonstrate the sufficiency of Class Counsel's attorney's fees, at this point, is now seven years old. Class Counsel does not present a more recent Consumer Law Attorney Fee Survey. Rather, Class Counsel uses inflation rates to demonstrate the appropriateness of its fees. (Pl.'s Mot. in Supp. of Atty's Fees at 6.) Class Counsel submitted the 2011 Consumer Law Attorney Fee Survey Report as evidence of the reasonableness of its attorney's fees, the burden of which falls on Class Counsel to demonstrate. The Court thus will consider the 2011 Consumer Law Attorney Fee Survey Report to analyze the reasonableness of attorney's fees and will not use inflation rates as suggested by Class Counsel to determine reasonableness.

         Class Counsel states that five attorneys, Russel S. Thompson, Joseph Panvini, David McDevitt, Courtney Moran, and Ryan Pittman, and two paralegals, Tremain Davis and Zac Landis, worked on this matter. (Pl.'s Mot. for Atty's Fees and Expenses at 4.) Thompson and Panvini list rates of $400/hour, McDevitt list a rate of $350/hour, and Moran and Pittman list rates of $250/hour. (Id.) Paralegals Davis and Landis list rates of $150/hour. (Id.) Class Counsel justifies these fees as they have been awarded the requested fees in other similar class actions in Arizona. (Id., at 6.) Such fees, however, have no bearing on the market rate in Fort Wayne, Indiana. The Consumer Law Attorney Fee Survey Report shows that Arizona and Indiana are in entirely different regions and not comparable [ECF No. 33-2 at 7, 21, 29].

         Class Counsel also states that, excluding paralegal time, the “blended rate” for the total attorney's fees would be $339/hour, which they claim is near the inflation-adjusted rate charged by consumer attorneys at small firms in Indiana. (Pl.'s Mot. for Atty's Fees and Expenses at 6). A blended rate is inappropriate in this instance. The market rate is the rate that lawyers of similar ability and experience in the community normally charge their paying clients. Owens, 365 F.Supp.2d at 947. Combining and averaging the fees of lawyers of various experience levels is inappropriate. Therefore, the Court must evaluate the reasonableness of these fees on an attorney-by-attorney basis.

         Thompson has practiced for six years and Panvini has practiced for seven years (Pl.'s Decl. in Supp. of Atty's Fees at ¶¶ 11-12, 13-14.) According to the Consumer Law Attorney Fee Survey Report, the average hourly rate for an attorney of their experience in the Midwest Region is $318/hour, $82/hour less than requested [ECF No. 33-2 at 21]. Based on Class Counsel's submissions, the Court finds that a rate of $318/hour is appropriate. McDevitt has been a practicing attorney for five years. (Pl.'s Decl. in Supp. of Atty's Fees at ¶¶ 15-16.) According to the Consumer Law Attorney Fee Survey report, the average hourly rate for an attorney of McDevitt's experience in the Midwest Region is $263/hour, $87/hour less than requested [ECF No. 33-2 at 21]. Based on Class Counsel's submissions, the Court finds that a rate of $263/hour is appropriate. Pittman has been a practicing attorney for three years and Moran has been a practicing attorney for one year. (Pl.'s Decl. in Supp. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.