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Young v. Diversified Consultants, Inc.: US District Court : FEES - lodestar discussion; reasonable hours expended in FDCPA case

Civil File No. 07‐4808 (MJD/AJB)
Thomas J. Lyons, Jr., Consumer Justice Center, PA, and Thomas J. Lyons, Sr.,
Lyons Law Firm, P.A., Counsel for Plaintiff.
James R. Bedell and Michael S. Poncin, Moss & Barnett, PA, Counsel for
This matter is before the Court on Plaintiffs Motion for Attorney Fees and
Costs. [Docket No. 11]
On December 11, 2007, Plaintiff Waverly C. Young filed a Complaint
against DCI Credit Services Inc. in this Court. On December 14, 2007, Young
filed an Amended Complaint against Defendant Diversified Consultants, Inc.
alleging Count I: Violations of the Fair Debt Collection Practices Act (FDCPA)
15 U.S.C. 1692 et seq.
On February 4, 2008, the parties conducted a telephonic Rule 26(f) meeting.
On February 5, 2008, Defendant served Young with a Rule 68 Offer of Judgment,
which Youngs counsel received on February 6, 2008. (Bedell Aff. 3‐4; Exs. BC
to Bedell Aff.) On February 19, 2008, Young filed an Acceptance of Defendant
Diversified Consultants Inc., Rule 68 Offer of Judgment. [Docket No. 9] The
parties agreed that judgment would be entered against Defendant for ,500.
The judgment entered shall include an additional amount for
Plaintiffs reasonable attorney fees and costs incurred by Plaintiff in
connection with the claims alleged in the herein matter. Said
amount for attorney fees and costs shall be agreed by counsel for the
parties, or determined by the Court upon application by Plaintiffs
counsel, subject to objection and response by Defendants counsel, if
counsel are unable to reach an agreement. Plaintiffs reasonable
attorney fees and costs shall be limited to time and amounts
expended on Plaintiffs claims in this matter through the date of
Plaintiffs counsels receipt of service of this Offer.
(Offer 2.)
Based on that Acceptance, the Court entered judgment for Plaintiff for
,500.00 and for the reasonable, necessarily incurred attorneys fees. [Docket No.
Because the parties are unable to agree on the amount of attorneys fees,
Young has now filed the current motion.
A. Standard
Both parties agree that the lodestar method is the appropriate approach for
the determining the amount of reasonable attorney fees to be awarded in this
case. Hensley v. Eckerhart, 461 U.S. 424, 433‐34 (1983). Under the lodestar
method, the Court determines the number of hours reasonably expended on the
litigation multiplied by a reasonable hourly rate. Id. at 433. The Court
considers a number of relevant factors, such as the difficulty of the case, the
experience of the attorneys, and awards in similar cases. Id. at 430 n.3.
B. Reasonable Hourly Rate
In his original motion, Young requests the following hourly rates: 0 per
hour for attorney Thomas J. Lyons, Jr., 0 per hour for attorney Thomas J.
Lyons, Sr., and 0 per hour for paralegal Susan Wolsfeld. In a subsequent
letter to the Court, Young reduces his request to 0 per hour for Lyons, Jr., and
5 for Lyons, Sr.
1. Thomas J. Lyons, Jr. and Thomas J. Lyons, Sr.
In the original motion, Young asserts that the Lyons current hourly rate is
0. In support of this request, Young relies on a number of types of evidence,
such as the Laffey Matrix, which the Court does not find persuasive. However,
the Court need not address this evidence, because, by letter dated April 9, 2008,
Young has reduced his requested hourly rate for the Lyons based on the recent
opinion awarding attorneys fees to the Lyons in Olson v. Messerli & Kramer,
P.A., No. 07‐CV‐0439 (PJS/RLE), 2008 WL 1699605 (D. Minn. Apr. 9, 2008)
(unpublished). In Olson, the court found a rate of 0 per hour to be reasonable
for Lyons, Jr., and 5 per hour for Lyons, Sr. Id. at * 2.
The Court finds Olson persuasive. Olson, like this case, was a relatively
straightforward individual [FDCPA] case. Id. As the court noted in Olson,
evidence of earlier cases in which Lyons, Jr. was awarded 0 and 0 per hour
does indicate that his current rate should have increased over time. Id. at *1. As
the curriculum vitae and previous court opinions submitted to this Court
demonstrate, the Lyons are both experts in the field of FDCPA litigation, with
Lyons, Sr. having even more experience and expertise than Lyons, Jr. Based on
this Courts own experience and knowledge of market rates and on the wellreasoned
opinion in Olson, the Court concludes that a rate of 0 per hour is
reasonable for Lyons, Jr., and a rate of 5 per hour is reasonable for Lyons, Sr.
2. Susan S. Wolsfeld.
Defendant does not object to the rate for Wolsfeld, and the Court concludes
that the claimed rate of 0 per hour is reasonable.
C. Reasonably Expended Hours
1. Introduction
Young claims that Thomas Lyons, Sr. spent 7.10 hours in this matter,
Thomas Lyons, Jr. spent 6.02 hours in this matter, and Susan S. Wolsfeld spent
9.74 hours in this matter. These amounts of time are all accurately supported in
the submitted billing records.
Defendant raises a number of specific objections to the claimed time
expended. The Court addresses each objection in turn.
Initially, Defendant asserts that, because both attorneys are experts in the
FDCPA, they should be able to swiftly and efficiently litigate this simple case.
The Court agrees that the Lyons expertise should enable them to efficiently
litigate FDCPA claims and it keeps this expertise in mind when determining the
number of hours reasonably expended.
2. Fees Incurred After Receipt of the Offer of Judgment
Defendant asserts that Young is seeking reimbursement for fees incurred
outside the terms of the Offer of Judgment. The terms of the Offer of Judgment
stated, Plaintiffs reasonable attorney fees and costs shall be limited to time and
amounts expended on Plaintiffs claims in this matter through the date of
Plaintiffs counsels receipt of service of this Offer. (Offer 2.) Young received
the Rule 68 Offer of Judgment on February 6, 2008. Therefore, Youngs counsel
cannot claim any fees incurred after February 6, 2007. The Court will reduce
Lyons, Jr.s fees by .54 hours for the time he expended on February 12, 2008. It
will reduce Lyons, Sr.s fees for 2.4 hours expended from February 7, 2008,
through February 19, 2008. Finally, the Court will reduce Wolsfelds time by .77
hours expended on February 12, 2008.
3. Preparation of the Complaint
Defendant asserts that the time spent preparing the Complaint is excessive
and duplicative. The Court does not agree that the time spent was duplicative.
The Court considers it reasonable for Youngs paralegal to have expended the
majority of the claimed time preparing the Complaint and for Lyons, Sr., to
spend a significantly smaller amount of time reviewing and finalizing the
Complaint. The Court concludes that the amount of time expended preparing
the Complaint was not unreasonable. Although the Complaint was derived from
a form and was not lengthy, preparing the Complaint also entailed analysis of the
facts and legal basis for the case and litigation strategy. The Court also concludes
that the time expended preparing the Amended Complaint was reasonable.
4. Time Expended During Interview
Defendant notes that on October 12, 2008, Lyons, Sr., claims to have spent
2.53 hours on Intake retainer; interview over e‐mail; phone interview.
Defendant argues that, according to the billing statement, this was the initial
consultation. Defendant further argues that the web site for Lyons Law Firm
states, We will not charge consumers for Initial Consultation, and We will
consult with any consumer free without charge or fee. (Bedell Aff. 12; Ex. K to
Bedell Aff.) Defendant notes that [h]ours that are not properly billed to ones
client also are not properly billed to ones adversary pursuant to statutory
authority. Hensley v. Eckerhart, 461 U.S. 424, 434 (1983) (citation omitted).
The Court concludes that the time billed above is reasonable. There is no
evidence that the time billed is for the initial consultation. Although this is the
first billing entry to date, the initial consultation is not charged to the client, so,
logically, such billing record would not be submitted to the Court.
5. Assertions of Excessive and Duplicative Billing
Defendant objects to time billed by Lyons, Jr., on February 6, 2008, for
discussing the Rule 68 Offer with Lyons, Sr., and editing the Rule 26(f) report.
All told, these tasks took 1.78 hours and Lyons, Sr., did not bill for time
discussing the Rule 68 offer. The Court concludes that this time was not
excessive. 1.78 hours is not an inordinate amount of time to both edit the Rule
26(f) report and discuss settlement options and strategy with an FDCPA expert.
Defendant next objects that, on January 3, 2008, Lyons, Jr., claims he spent
2.51 hours for File review and calls with Jeff Ludwig re settlement. Ludwig
avers that he did not have any telephone calls with Youngs counsel that day.
(Ludwig Aff. 2.) He further avers that he had only one conversation with
Youngs counsel throughout the entire litigation and that conversation only
lasted 10 minutes, at most. (Id. 3.) The Court notes that Youngs counsel have
no entries, other than the January 3 entry, that mention a telephone conversation
with Ludwig. Defendant also asserts that file review is an overly vague
description of the time spent.
Young bears the burden of establishing entitlement to an award and
documenting the appropriate hours expended and hourly rates. Hensley, 461
U.S. at 437. In light of the specific affidavit filed by Ludwig averring that he had
no telephone conversation with Lyons, Jr. on January 3 and, overall, had only one
ten‐minute conversation with him, and the fact that file review is an overly
vague description for a time entry of more than 2 hours, the Court will reduce
Lyons, Jr.s time by 1.51 hours for that date.
D. Costs
The Court has reviewed the records submitted by Youngs counsel and
finds that the request for 4.35 in costs incurred is reasonable and supported by
the record.
E. Conclusion
The Court has concluded that Lyons, Sr.s claimed time will be reduced
from 7.1 hours to 4.7 hours, and his claimed hourly rate will be reduced from
0 to 5. Lyons, Jr.s claimed time will be reduced from 6.02 hours to 3.97
hours, and his claimed hourly rate will be reduced from 0 to 0. Wolsfelds
claimed time will be reduced from 9.74 to 8.97 hours, and her claimed hourly rate
remains unchanged at 0. Therefore, Young in entitled to a total of 05.20 in
attorneys fees and 4.35 in costs.
Plaintiffs Motion for Attorney Fees and Costs [Docket No. 11] is
GRANTED IN PART and DENIED IN PART as follows: Plaintiff shall
recover attorney fees and costs in the amount of four thousand two
hundred and twenty‐nine dollars and fifty‐five cents (,229.55).
Dated: May 21, 2008 s / Michael J. Davis
Judge Michael J. Davis
United States District Court


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