United States District Court, N.D. Indiana, Fort Wayne Division
SAMUEL MALOY on behalf of Himself and others similarly situated, Plaintiff,
STUCKY, LAUER & YOUNG, LLP, Defendant.
OPINION AND ORDER
THERESA L. SPRINGMANN CHIEF JUDGE UNITED STATES DISTRICT
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.
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.)
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.)
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.
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).
Reasonableness of Hourly Rates
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].
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
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].
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
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. ...