Opinion
No. 00-4208-SAC.
June 9, 2004
MEMORANDUM AND ORDER
The case comes before the court on the plaintiff's motion for attorney fees and costs (Dk. 157), the defendants' objection to the plaintiff's requested attorneys' fees and bill of costs (Dk. 159), and the plaintiff's motion for the court to reconsider his request for the defendants' production of time and cost records (Dk. 160). The plaintiff filed this action against a debt collector and his employer alleging violations of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692; the Kansas Consumer Protection Act, K.S.A. 50-623; and state common law on the torts of fraud and outrage. The alleged violations occurred during one telephone message and four subsequent telephone calls all of which the plaintiff had recorded and during which the defendants threatened to bring criminal charges, threatened to file lawsuits, threatened to have liens placed on all of the plaintiff's property, threatened to tell all of the plaintiff's other creditors about his debt problems, made erroneous representations about the law concerning the debt and the collection of it, and personally attacked the debtor's manhood and maturity.
On January 13, 2004, just over two weeks before the scheduled jury trial in this case, the plaintiff accepted the defendants' following offer of judgment:
1) Judgment shall be entered in the amount of Fifteen Thousand Dollars ($15,000.00), as against the above-named Defendants Professional Recovery Services, Inc. and John Marzulli.
2) In addition, Plaintiff's reasonable costs and reasonable attorney's fees now accrued in connection with the above-referenced suit are to be added to the judgment as against the above-named Defendants Professional Recovery Services, Inc. and John Marzulli; said fees and costs shall be as are agreed to between counsel for the parties, or if they are unable to agree, as determined by the Court upon motion;
3) The judgment entered in accordance with this Offer of Judgment is to be in total settlement of any and all claims by Plaintiff Michael D. Caputo against the named defendants and said judgment shall have no effect whatsoever except in settlement of those claims; and
4) This Offer of Judgment is made solely for the purposes specified in Rule 68 of the Federal Rules of Civil Procedure, and is not to be construed either as an admission that Defendants Professional Recovery Services, Inc. and John Marzulli are liable in this action, or that Plaintiff Michael D. Caputo has suffered any damage. All liability is denied.
(Dk. 145). The court set out dates for the parties to complete their efforts at resolving the reasonable fees and costs and, in the event of no agreement, for submitting their respective motions, objections and briefs for the court's determination. (Dks. 147 and 152). Unable to resolve the fee and cost issue, the parties filed their briefs within the deadlines set. The plaintiff also filed a motion requesting the court to order the defendants to produce their attorneys' time and cost records. (Dk. 150). With the defendants' response opposing this discovery motion on file, (Dk. 154), the court denied the motion without prejudice to the plaintiff seeking reconsideration after the defendants filed their response to the fee application. (Dk. 155). The plaintiff has filed a motion to reconsider. (Dk. 160).
PLAINTIFF'S MOTION TO RECONSIDER REQUEST FOR PRODUCTION OF DEFENDANTS' TIME AND COST RECORDS
(DK. 160)
In its prior order, the court gave the plaintiff the chance to seek the court's reconsideration after the defendants filed their response. The court also directed the plaintiff in his request for reconsideration to include "a particularized showing of need." (Dk. 155). Corresponding to objections made by the defendants, the plaintiff seeks to learn the hourly rate charged by the defendant's lead attorney, Adam Plotkin, who practices in Denver, Colorado, and the manner in which the defendants charged for legal services performed by other staff, for staff time required to make photocopies, and for travel time and expenses. The plaintiff also seeks to know the total amount of fees and costs paid by the defendants in order to rebut the defendants' request for a downward adjustment of the lodestar amount.
The court finds that the plaintiff has not made a particularized showing of need for the requested information. The court finds little relevance to the hourly rate charged by Adam Plotkin and the manner in which he charged for travel because both are so factually distinguishable from the plaintiff's counsels' situation. Plotkin apparently is one of eight regional counsel who regularly represents the defendant. Plotkin maintains his legal practice in Denver, Colorado. Consequently, Plotkin's hourly rate and his practices in charging for different services and travel in Colorado are not relevant in deciding the reasonable rates and charges for the relevant community of Topeka, Kansas. Finally, the court is not convinced that what the defendants paid in total fees and costs would be significant information in deciding any of the defendants' objections to the plaintiff's fee application. After reconsidering the plaintiff's request for discovery of the defendants' time and cost records, the court denies it.
LAW GOVERNING DETERMINATION OF REASONABLE FEES AND COSTS
The court's authority to award attorneys' fees and costs in this case is a function of the parties' agreement reached through the Rule 68 procedure. A court is to enforce a Rule 68 agreement guided by common principles of contract law. See Herrington v. County of Sonoma, 12 F.3d 901, 907 (9th Cir. 1993); Medina v. Housing Authority of San Miguel County, 974 F.2d 1345, 1992 WL 218990, at * 2 (10th Cir. 1992); Lintz v. American General Finance, Inc., 76 F. Supp.2d 1200, 1212 (D. Kan. 1999). "`Unambiguous contracts are enforced according to their plain, general, and common meaning in order to ensure the intentions of the parties are enforced.'" Neustrom v. Union Pacific R. Co., 156 F.3d 1057, 1063 (10th Cir. 1998) (quoting Hall v. JFW, Inc., 20 Kan. App. 2d 845, 893 P.2d 837, 840 (1995)). "`Reasonable rather than unreasonable interpretations of contracts are favored,'" and "`[r]esults which vitiate the purpose or reduce the terms of a contract to an absurdity should be avoided.'" In re Villa West Associates, 146 F.3d 798, 803 (10th Cir. 1998) (quoting Kansas State Bank Trust Co. v. DeLorean, 7 Kan. App. 2d 246, 640 P.2d 343, 349 (1982)). The court construes the Rule 68 agreement in this case as entitling the plaintiff to recover his costs and attorneys' fees that had accrued as of the offer of judgment and that are deemed reasonable as a result of either the parties' agreement or the court's determination. As to what is reasonable, the agreement is silent, so the court will give this term its common meaning as generally recognized in the case law.
The determination of a reasonable award of attorney fees begins with calculating the "lodestar," that is, "the reasonable number of hours spent on the litigation multiplied by a reasonable hourly rate." United Phosphorus, Ltd. v. Midland Fumigant, Inc., 205 F.3d 1219, 1233 (10th Cir. 2000) (citation omitted). The "lodestar amount" is "the centerpiece of attorney's fee awards." Blanchard v. Bergeron, 489 U.S. 87, 94 (1989). The lodestar figure "is the presumptively reasonable fee." Metz v. Merrill Lynch, Pierce, Fenner Smith, Inc., 39 F.3d 1482, 1493 (10th Cir. 1994).
The party seeking fees has the burden of proving the amount of hours spent and the reasonableness of the same. United Phosphorus, Ltd., 205 F.3d at 1233. Put another way, the "burden in an application for attorneys fees is to prove and establish the reasonableness of each dollar, each hour, above zero." Jane L. v. Bangerter, 61 F.3d 1505, 1510 (10th Cir. 1995) (quotation and citation omitted). "[T]he party must submit `meticulous, contemporaneous time records that reveal, for each lawyer for whom fees are sought, all hours for which compensation is requested and how those hours were allotted to specific tasks.'" United Phosphorus, Ltd., 205 F.3d at 1233 (quoting Case v. Unified School Dist. No. 233, Johnson County, Kan., 157 F.3d 1243, 1249 (10th Cir. 1998)). "Attorneys normally do not bill all hours expended in litigation to a client and `an applicant should exercise billing judgment with respect to a claim of the number of hours worked.'" Jackson v. Austin, 267 F. Supp.2d 1059, 1066 (D. Kan. 2003) (quoting Ellis v. University of Kansas Medical Center, 163 F.3d 1186, 1202 (10th Cir. 1998)). Counsel are expected to make a "`good-faith effort to exclude from a fee request hours that are excessive, redundant, or otherwise unnecessary . . . [and the] district court has a corresponding obligation to exclude hours not reasonably expended from the calculation.'" Id. A district court approaches this reasonableness inquiry "much as a senior partner in a private law firm would review the reports of subordinate attorneys when billing clients. . . ." Ramos v. Lamm, 713 F.2d 546, 555 (10th Cir. 1983). The court may reduce "the reasonable hours awarded if `the number [of compensable hours] claimed by counsel include[s] hours that were unnecessary, irrelevant and duplicative.'" Erickson v. City of Topeka, Kansas, 239 F. Supp.2d 1202, 1207 (D. Kan. 2002) (quoting Carter v. Sedgwick County, Kan., 36 F.3d 952, 956 (10th Cir. 1994)). "[T]he overriding consideration . . . [is] whether the attorney's hours were `necessary' under the circumstances," which requires a court to determine "what hours a reasonable attorney would have incurred and billed in the marketplace under similar circumstances." Robinson v. City of Edmond, 160 F.3d 1275, 1281 (10th Cir. 1998). "[W]hat is reasonable in a particular case can depend upon factors such as the complexity of the case, the number of reasonable strategies pursued, and the responses necessitated by the maneuvering of the other side." Ramos, 713 F.2d at 554.
"When determining the appropriate rate to apply to the reasonable hours, `the district court should base its hourly rate award on what the evidence shows the market commands for . . . analogous litigation.'" United Phosphorus, Ltd., 205 F.3d at 1234 (quoting Case, 157 F.3d at 1255). The burden is with the applicant to show that the requested rates are reasonable, that is, they "are in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation." Ellis, 163 F.3d at 1203. "The establishment of hourly rates in awarding attorneys' fees is within the discretion of the trial judge who is familiar with the case and the prevailing rates in the area." Lucero v. City of Trinidad, 815 F.2d 1384, 1385 (10th Cir. 1987) (citation omitted). "[A] district court abuses its discretion when it ignores the parties' market evidence and sets an attorney's hourly rate using the rates it consistently grant[s]." Case, 157 F.3d at 1255 (quotation marks and citation omitted). The "court must award rates compatible with competent, trustworthy evidence of the market." Id. at 1256.
HOURLY RATE
The plaintiff's attorney, Fred W. Schwinn, who has been practicing law since September of 1997, seeks an hourly rate of $175.00. For Mr. Schwin, the plaintiff submits seven affidavits from attorneys practicing in this community in support of his requested hourly rate. Each attorney averred the same opinion that the prevailing market rate in Topeka for federal litigation of "commercial law" issues ranged between $150 to $250 depending on such factors as the attorney's skill, experience and reputation. Each attorney averred that an hourly rate of $175.00 was fair and reasonable for an attorney with Mr. Schwinn's experience, qualifications and expertise.
The plaintiff's attorney, James C. Heathman, who has been practicing civil and criminal litigation since September of 1990, seeks an hourly rate of $200.00. For Mr. Heathman, the plaintiff submits two affidavits from attorneys practicing in this community in support of his requested hourly rate. Both attorneys opined that the prevailing hourly rate in Topeka for federal "commercial" litigation was $150 to $250 and that an hourly rate of $200 was fair and reasonable for an attorney with Mr. Heathman's experience and qualifications.
Arguing the requested hourly rates are too high, the defendants propose an hourly rate of $125 for Mr. Schwinn and $135 for Mr. Heathman. In their search of the federal docket, the defendants found that Mr Schwin appeared in eleven district court cases, excluding the instant case, and all but one were bankruptcy appeals. The other non-bankruptcy case was brought under the Truth in Lending Act and was dismissed by the plaintiff pursuant to Fed.R.Civ.P. 41. The defendants found no published state court cases involving Mr. Schwinn. As for Mr. Heathman, the defendants found he had appeared in eight federal cases, four of which were criminal and none of the other four would qualify as federal commercial litigation. As for published state cases, Mr. Heathman's name appeared in two property damage cases where he defended a drainage district. The defendants refer to other recent federal district court cases in which attorneys' fees were awarded Topeka attorneys, and they contrast those awards based on the requested hourly rates and the attorneys' experience. Finally, the defendants submit the affidavit of a Topeka attorney who practices in the areas of bankruptcy and debtor/creditor disputes, who has appeared in approximately twenty federal district court cases, and who opines that a reasonable hourly rate for attorneys with less than 15 years of experience practicing debtor/creditor litigation in Topeka is a range between $110 and $135.
The plaintiff's evidence is not persuasive in proving the reasonableness of the requested hourly rate. In the attorneys' affidavits submitted by the plaintiff, this case is equated with federal commercial litigation, but the lack of legal and factual complexity to this case distinguishes it from typical federal commercial litigation. This case is more aptly described as a creditor/debtor litigation over debt collection practices. Nor is the evidence persuasive in showing either plaintiff's counsel to be particularly experienced in federal commercial litigation. Based on their level of experience and qualifications and the nature of this litigation, the court finds as reasonable the hourly rate of $150 for Mr. Schwinn and the hourly rate of $175 for Mr. Heathman.
The defendants do not lodge any other objections to the plaintiff's requested hourly rates. As this fee award is being determined under the offer of judgment, Rule 68 and related contract principles, the court will infer the parties' agreement on reasonableness in the absence of an objection.
The offer of judgment provided that "Plaintiff's reasonable costs and reasonable attorney's fees . . . shall be as are agreed to between counsel for the parties, or if they are unable to agree, as determined by the Court upon motion."
NUMBER OF HOURS
It is the plaintiff's burden to show that the claimed hours are reasonable. Blum, 465 U.S. at 897. Working from the same inference that the parties are in agreement on reasonableness except for those requested hours to which an objection has been made, the court will address the defendants' objections seriatim.
Staff Work
The defendants first summarily object that the plaintiff's initial billing statement includes time billed for staff work performed by persons who are not identified or otherwise documented in the statement as qualified staff. The plaintiff cured this deficiency in the billing statement and affidavit submitted to the court in support of his motion for attorneys' fees and costs. The defendants did not seek leave to file any additional response to the plaintiff's motion. In light of the plaintiff's subsequent filing, the court overrules the defendants' objection to staff time as undocumented.Photocopying Costs and Hours
The defendants next object that for photocopies the plaintiff not only has billed a per page charge of twenty-five cents rather than the ten cents per page rate used in this community but also has billed for the time spent making copies which is office overhead. The defendants submit evince by way of affidavit that a Topeka copying business charges ten cents a page for standard one-sided copies. Because the plaintiff submits no contrary evidence to support his higher requested rate, the court sustains the defendants' objection to a copying rate greater than ten cents a page. The defendants also object that the time spent making copies is office overhead which is not recoverable as a separate fee. Like other expenses and fees, this hourly charge for copying may be properly included upon proof that it is usually itemized and separately billed to a client. See Sussman v. Patterson, 108 F.3d 1206, 1213 (10th Cir. 1997). The plaintiff does not address this argument, nor does he offer any evidence showing that billing for copying time is a normal billing practice in this community. Based on the record before it, the court finds that making photocopies is a clerical task and that the time spent performing this task is part of office overhead. See Erickson v. City of Topeka, Kansas, 239 F. Supp.2d at 1208. The court sustains the defendant's objection to the time billed for making copies. Relying on the summaries prepared by the defendants regarding both of these items, the court reduces the plaintiff's request for photocopying costs from $7,055.00 to $2,822.00 and denies those fees ($1,432.50 or 57.3 hours at $25.00) for the time spent making copies.
Travel Time
When this case was filed, the plaintiff's counsel, Fred Schwinn, resided and practiced in Topeka, Kansas, and continued to do so until December 2002, when he moved his law practice to California. The plaintiff's counsel traveled back to Kansas twice for this case but seeks to recover for only one of those two trips. He requests 60 hours of driving time at one-half his hourly rate, $108.99 in lodging costs, $1,500.00 in mileage costs, and $6.30 in highway tolls. The defendants object that they should not be charged for Mr. Schwinn's personal decision to move or for the plaintiff's desire to keep Mr. Schwinn after the move to California. Based on Mr. Schwinn's representation at the status conference that the plaintiff's representation had been divided with Mr. Schwinn doing the motion work and Mr. Heathman handling the trial, the defendants argue that if the plaintiff did not want to bear Mr. Schwinn's travel expenses then Mr. Schwinn could have withdrawn from the case prior to the status conference.
The court agrees that the defendants should not be saddled with the additional expense resulting from Mr. Schwinn's decision to move his legal practice to California and Mr. Caputo's decision to continue his relationship with also Mr. Schwinn after the move rather than to rely on the representation of his co-counsel Mr. Heathman. See Bjerke v. Nash Finch Co., 2001 WL 1820381, at *3 (D.N.D. Sept. 28, 2001). The plaintiff has not carried his burden of showing that the circumstances of this case make it reasonable for the defendants to bear the costs flowing from those decisions. The court sustains the defendants' objection to the hours billed (30 full rate hours at $150.00 per hour or $4,500.00) and other costs ($1,615.29) associated with Mr. Schwinn's travel to Kansas from California.
Drafting Complaints
The defendants complain that it is unreasonable for the plaintiff's counsel to bill $2,393.50 for drafting complaints and amended complaints. In looking over the statement, court finds that the plaintiff's counsel has not exercised billing judgment in charging his client almost fifteen hours of law clerk time for drafting the initial complaint. The plaintiff offers the court no explanation for why these hours were reasonably necessary for drafting a straightforward eleven-page complaint. The court will reduce the billed law clerk hours by eight (8 hours times $60.00 hourly rate or $480.00) for the drafting of the initial complaint. The court finds the other hours billed by Mr. Schwinn and the law clerks for the drafting of later amended complaints to be reasonable under the circumstances. Specifically, the plaintiff was required to amend the complaint after the court granted the defendants' motion to dismiss.
Motion in Limine-Plaintiff's Character and Status
The defendants object to awarding the plaintiff more than one hour for preparing this motion, as it appears to have been taken verbatim from a reference book. The billing statement reflects that the plaintiff billed six and one-half hours of law clerk time and one-half hour of attorney time in researching and drafting this motion. After comparing the resource book and the plaintiff's motion, the court exercises billing judgment and reduces the law clerk's time to three hours for the work on this motion. Thus, the court sustains the defendants' objection and reduces the law clerk's time by three and one-half hours (3.5 hours times $60 or $210) for the work on this motion.
Motion in Limine-Computer-Enhanced Audio Recording
The plaintiff filed a motion seeking from the court an in limine ruling on the admissibility of a "computer-enhanced" audio recording. The plaintiff's counsel did not disclose the existence of this recording until the status conference on January 7, 2004, and followed this disclosure with the filing of the motion in limine on January 8, 2004. As stated in his motion, the plaintiff's counsel in August of 2003 contacted an audio engineer who placed the cassette tap recordings onto a computer in digital format and then using a software program subjected the recording to various filtering functions. These filtered digital files were then reproduced onto compact discs for use at trial.
The defendants object to the fees and costs incurred in preparing this computer enhanced recording and the subsequent motion in limine. The defendants argue this enhanced recording and its creator were never listed on the plaintiff's final witness and exhibit list, and the plaintiff does not offer any good reason for the delay in producing and disclosing the recording. The defendants also object that the person creating this computer enhanced recording meets the definition of an expert and that the plaintiff did not comply with the expert witness discovery requirements. Finally, the defendants complain the recording is not admissible under Fed.R.Evid. 1004.
The court overrules the defendants' objection. The parties' agreement under Rule 68 does not restrict fees and costs to those claims, issues or matters on which the plaintiff prevailed or would have prevailed. The court agrees with the defendants that the plaintiff had to overcome some legal issues before this computer-enhanced recording would have been admitted into evidence. The court, however, does not consider these legal issues to be so overwhelming or daunting that a reasonable attorney would not have pursued the making of the digitally enhanced recording or the filing of the motion in limine. Because the recordings obviously are the most critical evidence in this case, the court finds it quite reasonable that the plaintiff's counsel would work to secure and admit the clearest and most understandable recording possible. The defendants offer no other objections to the reasonableness of these requested fees and costs. In the absence of any further objection, the court finds these fees and costs to be reasonable under the parties' agreement.
DOWNWARD ADJUSTMENT
The defendants argue the court should reduce the fee request because of the plaintiff's "limited success." In the pretrial order, the plaintiff prayed for a judgment in excess of four million dollars plus attorney's fees but accepted an offer of judgment of $15,000 plus reasonable attorney's fees and costs. In the defendants' opion, this disparity between the prayer and the eventual recovery calls into question the plaintiff's counsel's ability to evaluate this case. The defendants suggest a reasonable appropriate fee in this case would not exceed $30,000 or twice the amount paid to the plaintiff.
The plaintiff addresses this issue in several ways. First, the plaintiff's counsel say they have exercised billing judgment and reduced the billed hours for the Consumer Law Center by 25% and the hours for James C. Heathman by almost 10%. Having eliminated this "fat," the plaintiff's counsel dispute the need for further reductions. As far as the degree of success, the plaintiff's position is that the lodestar amount should be awarded so long as the plaintiff recovered more than nominal damages. The plaintiff argues that a reasonable attorney fee need not be proportional to the amount of the plaintiff's recovery and that there are many cases, including FDCPA cases, in which the fee awards are disproportionate to the damage awards.
In adopting the lodestar approach in Hensley, the Supreme Court said that once a court has arrived at a lodestar amount (reasonable hours times reasonable rate), there may be other considerations that could influence adjusting a fee upward or downward. Hensley v. Eckerhart, 461 U.S. 424, 434 (1983). The Court pointed to the factors set out in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974), but also recognized that "many of these factors usually are subsumed within the initial calculation of [the lodestar]." Hensley, 461 U.S. at 434 n. 9. While there is no strict rule or requirement that fees to be reasonable must be proportionate to the amount of damages, see City of Riverside v. Rivera, 477 U.S. 561, 580-81 (1986), "[t]here is no doubt that a district court may reduce a lodestar calculation on the grounds that a prevailing [plaintiff] has achieved only partial success." Robinson v. City of Edmond, 160 F.3d at 1283. The rationale behind this rule is that "if a plaintiff has achieved only partial or limited success, the product of hours reasonably expended on the litigation as a whole times a reasonable hourly rate may be an excessive amount." Hensley, 461 U.S. at 436. Indeed, "the degree of the plaintiff's success in relation to the other goals of the lawsuit is a factor critical to the determination of the size of a reasonable fee." Texas State Teachers Ass'n v. Garland Independent School Dist., 489 U.S. 782, 790 (1989) (emphasis in original).
Courts have analyzed such factors as the novelty or difficulty of the claims and issues, the skill required of counsel, counsel's preclusion from other employment, the contingent nature of the fee arrangement, time constraints, the results obtained, and the actual experience, reputation and ability of counsel. See In re Miniscribe Corp., 309 F.3d 1234, 1238 (10th Cir. 2002).
Principles from Hensley are to be used in determining fees in cases involving claims under the FDCPA. See Graziano v. Harrison, 950 F.2d 107, 114 (3rd Cir. 1991) ("Among the factors the court may consider in determining the appropriate amount of the fee is the degree of success obtained by the prevailing plaintiff; if the plaintiff as only partial or limited success, a reduction in the award of attorney's fees may be appropriate."); Mares v. Credit Bureau of Raton, 801 F.2d 1197, 1201-10 (10th Cir. 1986) ("A general reduction of hours claimed in order to achieve what the court determines to be a reasonable number is not an erroneous method, so long as there is sufficient reason for its use." (citing in part Hensley, 461 U.S. at 424)). Other federal courts have reduced lodestar amounts in FDCPA cases based on limited success. See Huff v. Dobbins, Fraker, Tennant, Joy Perlstein, 243 F.3d 1086 (7th Cir. 2001) (Affirmed the district court which awarded $1,000 in statutory damages on FDCPA claim and awarded only $13,788 of the plaintiff's fee request of $121,080 after excluding excessive hours for simple claims and after considering the limited success); Carroll v. Wolfpoff Abramson, 53 F.3d 626, 629-30 (4th Cir. 1995) (Affirmed the district court's large reduction of fee request in light of small statutory damages for a technical violation of FDCPA, but recognized that proof of "abusive or deceitful debt collection" practices could "establish a foundation for larger attorney's fee awards.")
The Tenth Circuit has said that in evaluating this factor "the district court must make a qualitative assessment to determine what less-than-perfect results are `excellent,' justifying full recovery, or to what extent plaintiffs' `limited success" should effect a reduction in the lodestar. `There is no precise rule or formula' for making such determinations. Jane L. v. Bangerter, 61 F.3d at 1511 (citation omitted). The court finds it difficult to label the plaintiff's results as anything close to excellent or even just a little "less-than-perfect" considering the expanse between his multi-million dollar prayer and his acceptance of $15,000. The court appreciates that the plaintiff's claims included some serious allegations of unlawful and deceitful collection practices and that this litigation benefits not only the plaintiff but also broader policy interests. While these circumstances certainly temper concerns over the substantial disparity between the prayer and the recovery, they do not put them to rest.
The court remains bothered by the large amount of legal work charged in a case which revolved around what was said in a series of recorded telephone collection calls. In its order addressing the parties' summary judgment motions, the court observed:
Before addressing the substance of the motions, the court must comment on the briefs and exhibits that have been submitted. This case consists principally of what was said in a telephone message and four subsequent collection calls, all of which were tape recorded and have been transcribed, reproduced, and submitted as exhibits. Neither side advances any challenge to the accuracy of the recordings, and both sides apparently agree the actual recordings are the best evidence of what was said. This case is unusual in that the most critical facts involved in the litigation are essentially undisputed. Nor is the relevant law governing these claims particularly complex or unsettled. In such circumstances, one would expect the parties to submit concise memorandum that focus on narrow legal issues appropriately suited to summary judgment proceedings. What the court has received is a stack of briefs and exhibits almost eclipsing nine inches. The briefs are anything but concise and focused. They are rambling, repetitive, and replete with argumentative, if not somewhat misleading, characterizations of what was said in those recorded conversations. This chosen manner for briefing the issues has placed an unnecessary demand on the court's time and resources. To conserve its efforts, the court will suspend its normal practice of addressing each tendered paragraph in the parties' statements of fact and simply summarize the more important uncontroverted facts in its discussion of the respective claims.
. . . .
To be entitled to summary judgment by reason of this defense, the defendants must establish a bona fide error for each and every alleged violation of the FDCPA. To be entitled to partial summary judgment against this defense, the plaintiff must establish that there was no bona fide error for each and every alleged violation of the FDCPA. The parties have failed to carry their respective burdens. Neither side has briefed this issue and made use of any comprehensive listing of the specific recorded statements that correspond with the general allegations of statutory violations. Nor have they focused their evidence on training and the arguments on reasonableness to the specific recorded statements. Instead, both sides randomly pick different recorded statements and generally argue the lack of intent or the presence of intent. Essentially, both sides assume that the presence or absence of intent as to one violation necessarily decides the issue of intent as to another violation. The parties cite no authority for this assumption which frankly seems illogical and incongruent with the purpose of the Act. The court recognizes that it could stretch the summary judgment standards and decide the applicability of this defense to one or more of the violations that the parties have identified and but argued in only the most general of ways. The value in doing this seems questionable, because neither side has carried its evidentiary burden for obtaining the relief requested in its motion. The court summarily denies both motions concerning the bona fide error defense.Caputo v. Professional Recovery Services, Inc., 261 F. Supp.2d 1249, 1252-53, 1259 (D. Kan. 2003) (footnotes omitted). In footnotes to these passages, the court noted that the plaintiff had "matched and exceeded" the defendants' "excessive briefing" in taking 78 pages to controvert the defendants' statement of facts consisting of an unnecessary 24 pages. 261 F. Supp.2d at 1252 n. 1. In another footnote, the court observed that the plaintiff in an interrogatory response had listed 162 violations of the FDCPA by the defendants in these four phone calls. 261 F. Supp.2d at 1259 n. 4. The court criticized the parties for not making "any effort at grouping these violations into some manageable set of claims for purposes of the summary judgment proceedings." Id. The number of hours billed by the plaintiff's counsel certainly is attributable in part to the defendants' stalwart defense, but there is a noteworthy amount of billed hours that the court considers excessive briefing, over-alleging of facts and violations, and the trumping up of a case that is simple in its facts and relatively straightforward in the governing law. After weighing these factors and closely looking over the billing statement, the court concludes that a twenty percent reduction in claimed fees to be appropriate.
Enhancement
The plaintiff's counsel assert there are few Kansas attorneys willing to undertake FDCPA cases because of the special expertise required and the risk of non-payment. The plaintiff argues the court should enhance the requested fees by ten to twenty-five percent so as to make FDCPA cases attractive to other competent counsel in the area. The court believes the size of the fee award in this case, without any additional enhancement, when considered in light of statutory fee awards in other cases may be enough incentive to attract counsel into this practice area. The court cannot leave this issue without adding its opinion that more counsel would be motivated to take FDCPA cases if more clients were like Mr. Caputo and presented their attorneys with recorded collection calls similar to those in this case.
Plaintiff's Fees in Preparing Fee Request
The plaintiff's counsel asks the court to award fees for the time spent preparing and pursuing this fee request. The plaintiff cites case law where such fees have been allowed for fee requests when the fees are being pursued for prevailing plaintiffs under statutory fee provisions. That this case law is plainly inapplicable here is a conclusion required by law and supported by even the plaintiff's brief. In arguing against any reduction for those claims not brought under a fee-reversing statute, the plaintiff wrote: "Plaintiff in this case is not seeking his reasonable attorney fees and costs under a `fee-reversing' statute per se, but under the Defendants' Offer of Judgment which is a contract." (Dk.158, p. 7). Under the terms of the offer of judgment, the plaintiff is entitled to recover his "reasonable costs and reasonable attorney's fees now accrued in connection with the" case. (Dk. 145). In other words, the court is only to determine those reasonable costs and fees accrued as of the offer of judgment. The court is without authority to award fees and costs beyond the terms of the offer of judgment.
Final Calculations
Based upon the above rulings, the court calculates the fees and costs using the plaintiff's summaries appearing on page fifteen of his memorandum and paragraph fourteen of Fred Schwinn's affidavit. The court determines the lodestar fees as follows:
FEES
Person/Position Hours Rate Total
Fred Schwinn 388.1 $150.00 $58,215.00 James Heathman 143.85 $175.00 $25,173.75 Assoc. Attorney .1 $140.00 $ 14.00 Law Clerks 260.3 $ 60.00 $15,618.00 Legal Assistant 5.6 $ 40.00 $ 224.00 Document Clerk 4.3 $ 25.00 $ 107.50 __________ TOTAL $99,352.25Downward Adjustment by 20% -19,870.45
REASONABLE FEES $79,481.80
COSTS AND EXPENSES
Total Request appearing in ¶ 14 of Affidavit $14,912.51
Less costs awarded in Bill of Costs -2,414.95
Less photocopying costs -4,233.00 __________ REASONABLE COSTS AND EXPENSES $ 8,264.56
TOTAL OF REASONABLE FEES, COSTS AND EXPENSES AS DETERMINED BY THE COURT $87,746.36
IT IS THEREFORE ORDERED that pursuant to the parties' agreement embodied in the Rule 68 offer of judgment and based upon the evidence of record and the case law generally defining "reasonable" fees, costs and expenses, the plaintiff's reasonable fees, costs and expenses total $87,746.36, as enumerated above.