United States District Court, D. New Jersey
BRIAN A. PICCINETTI, Plaintiff,
CLAYTON, MYRICK, MCCLANAHAN & COULTER, PLLC, et al., Defendants.
HONORABLE TONIANNE J. BONGIOVANNI UNITED STATES MAGISTRATE
matter comes before the Court upon Plaintiff Brian A.
Piccinetti's (Plaintiff) motion for attorneys' fees
and costs. [Docket Entry No. 47]. Defendants Clayton, Myrick,
McClanahan & Coulter, PLLC (the “PLLC”),
Internal Credit Systems, Inc. (“ICS”) and Robert
J. Nauseef (“Nauseef”) (collectively,
“Defendants”) oppose Plaintiff's motion. The
Court has fully reviewed and considered all arguments made in
support of and in opposition to Plaintiff's motion for
attorneys' fees and costs. The Court considers
Plaintiff's motion without argument pursuant to L.Civ.R.
78.1(b). For the reasons set forth below, Plaintiff's
motion is GRANTED IN PART.
Background and Procedural History
filed this action against Defendants on July 5, 2016 alleging
that Defendants used an unfair and unconscionable means to
collect a debt in violation of the Fair Debt Collection
Practices Act (“FDCPA”), 15 U.S.C. § 1692,
et seq. The debt at issue involved money purportedly
owed to Gold's Gym. Plaintiff stylized his Complaint as a
class action brought on behalf of “a class of New
Jersey consumers seeking redress for Defendant's [sic]
actions[.]” (Compl. ¶3; Docket Entry No. 1).
Defendants answered Plaintiff's Complaint on August 1,
2016, denying any culpable conduct and raising several
affirmative defenses. (See generally, Def. Answer;
Docket Entry No. 6).
March 2, 2017, Defendants filed a motion for partial judgment
on the pleadings under Fed.R.Civ.P. (“Rule”)
12(c), arguing that they were entitled to judgment as a
matter of law on Counts III and IV of Plaintiff's
Complaint. (See generally, Def. Br. in Support of
Motion for Judgment on the Pleadings; Docket Entry No. 23-1).
Count III asserted claims against the PLLC and Nauseef for
violations of §§ 1692e(2), 1692e(5) and 1692e(10)
of the FDCPA. (See Pl. Compl. ¶¶ 67- 71).
Section 1692e(2) prohibits a debt collector from falsely
representing “the character, amount, or legal status of
any debt[.]” Section 1692e(5) prohibits a debt
collector from “threat[ening] to take any action that
cannot legally be taken or that is not intended to be
taken.” Section 1692e(10) prohibits a debt collector
from using “any false representation or deceptive means
to collect or attempt to collect any debt or to obtain
information concerning a consumer.” Count IV of
Plaintiff's Complaint asserted a violation of §
1692j of the FDCPA. (See Pl. Compl. ¶¶ 72
- 75). Section 1692j makes it “unlawful to design,
compile, and furnish any form knowing that such form would be
used to create the false belief in a consumer that a person
other than the creditor of such consumer is participating in
the collection of or in an attempt to collect a debt such
consumer allegedly owes such creditor, when in fact such
person is not so participating.” In the alternative,
Defendants requested permission to file an Amended Answer,
allowing Nauseef to assert additional affirmative defenses.
(See Def. Br. in Support of Motion for Judgment on
the Pleadings at 12-15).
District Court granted in part and denied in part
Defendants' motion for partial judgment on the pleadings.
Specifically, the District Court granted Defendants'
motion with respect to certain claims asserted in Count III
of the Complaint and as to Count IV in its entirety. With
respect to Count III, the District Court dismissed
Plaintiff's claims for violations asserted under
§1692e(2) as well as for any purported violations of
§1692e based on the PLLC and Nauseef's lack of
meaningful involvement in the collection of Plaintiff's
debt, but found that Plaintiff adequately stated claims
against the PLLC and Nauseef for violating §§
1692e(5) and 1692e(10). In dismissing Plaintiff's claim
that the PLLC and Nauseef violated §1692e(2), the
District Court noted that Plaintiff did not respond to
Defendants' arguments that Plaintiff owed money to
Gold's Gym and that the amount stated in the collection
letter at issue was correct, apparently conceding that there
was no §1692e(2) violation. Mem. Op. of 9/5/2017 at 4;
Docket Entry No. 27. Further, with respect to Plaintiff's
lack of meaningful involvement by attorneys claim under
§ 1692e, the District Court noted that “Count
Three does not appear to allege Clayton and Nauseef's
lack of meaningful involvement as a basis for a violation of
15 U.S.C. §1692e.” Id. at 7. Given
Plaintiff's “failure to allege any facts regarding
the purported lack of meaningful involvement by attorneys,
” the District Court granted Defendants' motion
“with respect to this claim.” Id.
Finally, the District Court granted Defendants' motion to
dismiss Plaintiff's claim for alleged violations of
§1692j, noting that Plaintiff failed to respond to
Defendants' argument that §1692j “‘does
not apply to collection letters sent by one debt collector on
behalf of another debt collector[, ]” thereby
apparently conceding that Defendants were right. Id.
at 8. The aforementioned dismissals were made without
prejudice, and Plaintiff was given permission to file an
Amended Complaint. Order of 9/5/2017 at 1-2; Docket Entry No.
28; Mem. Op. of 9/5/2017 at 4 n. 5, 8 n. 9.
September 19, 2017, Defendants filed a motion for
reconsideration with respect to the District Court's
September 5, 2017 decision granting in part and denying in
part Defendants' motion for partial judgment on the
pleadings. [Docket Entry No. 30]. Through their motion for
reconsideration, Defendants argued that: (1) the District
Court's dismissals should have been made with, not
without, prejudice; (2) the District Court should have also
dismissed Plaintiff's claims asserted under 15 U.S.C.
§§ 1962e(5) and (10) and that these dismissals
should be made with prejudice; and (3) the District Court
never addressed Defendants' request for alternative
relief and should Plaintiff's claims not be dismissed
with prejudice, Defendants should be permitted to amend their
Answer to allow Nauseef to raise additional defenses.
(See generally, Def. Letter Br. of 9/19/2017; Docket
Entry No. 30-1).
September 20, 2017, Plaintiff filed his Amended Complaint. In
same, Plaintiff did not pursue any claims for violations of
15 U.S.C. § 1692j. Plaintiff did, however, reassert
claims based on purported violations of § 1692e(2),
adding limited additional factual allegations in support of
same. Plaintiff also made certain changes to his class
allegations and added Theodore Lachman
(“Lachman”) as a defendant, seeking relief from
Lachman in Counts I and II of the Amended Complaint.
after the Amended Complaint was filed, the Court scheduled a
status conference with the parties. Text Order of 10/10/2017;
Docket Entry No. 38. During the conference, the Court engaged
in settlement discussions with counsel and scheduled a formal
settlement conference for November 7, 2017. See
Minute Entry of 10/26/2017. The settlement conference was
later adjourned to December 12, 2017 at the parties'
request. Text Order of 11/8/2017; Docket Entry No. 40. While
the matter did not settle on December 12, 2017, headway was
made, and the parties were to report back with an update by
December 22, 2017. See Minute Entry of 12/12/2017.
December 28, 2017, the parties informed the Court that a
settlement had been reached. Defendants agreed to pay
Plaintiff $2, 500 on or before January 15, 2018. The parties
further consented to Magistrate Judge jurisdiction with
respect to Plaintiff's anticipated fee application, as
the parties could not reach an agreement with respect to what
was a reasonable fee for Plaintiff's counsel.
(See Email from Christopher Dalton to Hon. Tonianne
J. Bongiovanni with cc to Ari Marcus and Patrick D. Doran of
12/28/2017 at 12:34 p.m., Ex. A. to Decl. of Christopher J.
Dalton, Esq. of 3/30/2018; Docket Entry No. 52-1); Order and
Notice of Consent to Jurisdiction by U.S. Magistrate Judge of
1/8/2018, Docket Entry No. 43. In light of the parties'
settlement agreement, Defendants withdrew their motion for
reconsideration as moot. See Letter Order of
1/29/2018; Docket Entry No. 44. The Court set a briefing
schedule for Plaintiff's motion for attorneys' fees
and costs. That motion is fully briefed and now ripe for the
FDCPA affords prevailing plaintiffs the right to recoup their
reasonable attorneys' fees and costs. See 15
U.S.C.A. §1692k(a)(3). Generally, courts use the
“lodestar” method in evaluating a fee application
and, indeed, the lodestar calculation is presumed to yield a
reasonable attorney fee award. See Machado v. Law Offices
of Jeffrey, Civil Action No. 14-7401 (MAS) (TJB), 2017
WL 2838458, *2 (D.N.J. June 30, 2017). Under the lodestar
method, an attorney's reasonable hourly rate is
multiplied by the number of hours the attorney reasonably
spent working on a matter. Interfaith Cmty. Org. v.
Honeywell Int'l, Inc., 426 F.3d 694, 703 n.5 (3d
Cir. 2005) (citing Blum v. Stenson, 565 U.S. 886,
888, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984) (citations
“party seeking attorney fees bears the ultimate burden
of showing that its requested hourly rates and the hours it
claims are reasonable.” Id. (citing Rode
v. Dellarciprete, 892 F.2d 1177, 1183 (3d Cir. 1990)).
“Reasonable hourly rates are typically determined based
on the market rate in the attorney's community for
lawyers of similar expertise and experience.”
Machado, 2017 WL 2838458, at *2 (citing
Interfaith, 426 F.3d at 713). Evans v. Port
Auth. of N.Y. and N.J., 273 F.3d 346, (3d Cir.
2001). The attorney seeking fees bears the burden of
establishing that the rate requested “constitutes a
reasonable market rate for the essential character and
complexity of the legal services rendered.” Smith
v. Philadelphia Hous. Auth., 107 F.3d 223, 225 (3d Cir.
1997). With respect to the hours claimed, it is incumbent
upon the Court to “exclude hours that are not
reasonably expended.” Rode, 892 F.2d at 1183
(citing Hensely v. Eckerhart, 461 U.S. 424, 433, 103
S.Ct. 1933, 76 L.Ed.2d 40 (1983)). “Hours are not
reasonably expended if they are excessive, redundant, or
otherwise unnecessary.” Id. The Court,
however, may not reduce a fee award sua sponte.
Instead, “it can only do so in respect to specific
objections made by the opposing party. But once the opposing
party has made a specific objection, the burden is on the
prevailing party to justify the size of its request.”
Interfaith, 426 F.3d at 711 (citing Bell v.
United Princeton Props., Inc., 884 f.2d 713, 719 (3d
while the lodestar calculation is “strongly presumed to
yield a reasonable fee” (Washington v. Phila.
County Ct. of C.P., 89 F.3d 1031, 1035 (3d Cir. 1996)
(citing City of Burlington v. Dauge, 505 U.S. 557,
112 S.Ct. 2638, 120 L.Ed.2d 449 (1992)), “[t]he court
can adjust the lodestar downward if the lodestar is not
reasonable in light of the results obtained.”
Rode, 892 F.2d at 1183 (citing Hensley, 461
U.S. at 434-37). “Indeed, ‘the most critical
factor' in determining the reasonableness of a fee award
‘is the degree of success obtained.'”
Farrar v. Hobby, 506 U.S. 103, 114, 113 S.Ct. 566,
121 L.Ed.2d 494 (1992) (quoting Hensley, 461 U.S. at
436). As such, where a plaintiff has achieved only limited or
partial success, “the product of hours reasonably
expended on the litigation as a whole times a reasonable
hourly rate may be an excessive amount.”
Hensely, 461 U.S. at 436. When a fee award based on
the lodestar calculation would be excessive, the Court may
exercise its measured discretion to reduce same.
Farrar, 506 U.S. at 115; see Machado, 2017
WL 2838458, at *2. In fact, the Court “retains a great
deal of discretion in deciding what a reasonable fee award
is” (Bell, 884 F.2d at 721), and, it is
understood that “in determining whether the fee request
is excessive . . . the court will inevitably engage in a fair
amount of ‘judgment calling' based upon its
experience with the case and the general experience as to how
much a case requires.” Evans, 273 F.3d at 362.
However, given the purpose of mandatory fee-shifting statutes
like the FDCPA, a “reasonable” attorneys' fee
does not necessarily mean a proportionate fee. See
Agostino v. Quest Diagnostics, Inc., Civil Action No.
04-4362 (SRC), 2011 WL 13138113, *2 n.2 (D.N.J. Oct. 6,
Reasonable Hourly Rate
Plaintiff seeks to recover attorneys' fees for three
professionals: Ari Marcus, Yitzchak Zelman and Lori Hague.
Both Messrs. Marcus and Zelman have submitted declarations
outlining their credentials and experience in support of
their claimed hourly rates. Ms. Hague has not, and neither
Mr. Marcus nor Mr. Zelman explain her role in this
Marcus states that his regular hourly rate is $450.00 per
hour, though he is only seeking to be reimbursed in this
matter at $400.00 per hour. (Decl. of Ari Marcus, ¶ 10
n.1; Docket Entry No. 47-3). In support of the $400.00 per
hour rate, Mr. Marcus notes that he graduated from Brooklyn
Law School in June 2010 and has been licensed to practice by
the State of New Jersey since 2010. (Id.
¶¶ 4 & 5). Mr. Marcus notes that he has been
continuously practicing consumer protection law in the
Federal Courts since 2010 and indicates that he has appeared
in various consumer law matters in a number of Federal Courts
across the country. (Id. ¶ 6). Mr. Marcus
further notes that he founded the law firm of Marcus Law, LLC
in 2011, which became Marcus & Zelman, LLC in 2015 when
Mr. Zelman joined the firm and that since that time, the firm
has recovered millions of dollars vindicating consumers'
rights. (Id. ¶¶ 7 & 8). Mr. Marcus
points out that in a different matter pending in the District
of New Jersey, the Honorable Peter G. Sheridan appointed
Marcus & Zelman, LLC as class counsel, finding the firm
to be “qualified and experienced in consumer action
lawsuits.” (Id. ¶ 9 (internal quotation
marks and citation omitted)). Mr. Marcus declares that his
requested rate is in line with other attorneys who share his
“skill, background and acumen[.]” (Id.
¶ 11). In this regard, Mr. Marcus relies on the rates
set forth in the 2015-2016 United States Consumer Law
Attorney Fee Survey Report as well as cases decided in this
District in which he was awarded an hourly rate of $450.00
per hour to support the reasonableness of a $400 hourly rate.
(Id. ¶¶ 12-15). Mr. Marcus also relies on
a letter submitted by William Pinilis, Esq. to support his
requested hourly rate. (Letter from William J. Pinilis to
Hon. Tonianne J. Bongiovanni of 3/14/2018; Docket Entry No.
Zelman states that his regularly hourly rate is $350.00 per
hour and he seeks to be reimbursed at that rate in this
litigation. (Decl. of Yitzchak Zelman, ¶ 10; Docket
Entry No. 47-2). In support of this hourly rate, Mr. Zelman
notes that he graduated from the Benjamin N. Cardozo School
of Law in June 2012 and has been licensed to practice by the
State of New Jersey since 2012. (Id. ¶¶ 4
& 5). Mr. Zelman notes that he has been continuously
practicing consumer protection law in the Federal Courts
since 2012 and indicates that he has appeared in various
consumer law matters in a number of Federal Courts across the
country. (Id. ¶ 6). Mr. Zelman further notes
that with Mr. Marcus, he founded the law firm of Marcus &
Zelman, LLC in June 2015 and that since its creation, the
firm has recovered millions of dollars vindicating
consumers' rights. (Id. ¶¶ 7 & 8).
Mr. Zelman, like Mr. Marcus, points out that in a different
matter pending in the District of New Jersey, the Honorable
Peter G. Sheridan appointed Marcus & Zelman, LLC as class
counsel, finding the firm to be “qualified and
experienced in consumer action lawsuits.” (Id.
¶ 9 (internal quotation marks and citation omitted)).
Mr. Zelman declares that his requested rate of $350.00 per
hour is in line with other attorneys who share his
“skill, background and acumen.” (Id.
¶ 11). In this regard, Mr. Zelman relies on the rates
set forth in the 2015-2016 United States Consumer Law
Attorney Fee Survey Report as well as cases decided in this
District in which he was awarded an hourly rate of $350.00
per hour to support the reasonableness of his request to be
compensated at an hourly rate of $350.00 per hour.
(Id. ¶¶ 12-15). Like Mr. Marcus, Mr.
Zelman also relies on the letter submitted by William
Pinilis, Esq. to support his requested hourly rate. (Letter
from William J. Pinilis to Hon. Tonianne J. Bongiovanni of
object to Messrs. Marcus and Zelman's respective requests
to be compensated at $400.00 and $350.00 per hour, arguing
that said hourly rates are unsupported and excessive.
Defendants contend that Mr. Pinilis's letter submitted in
support of Messrs. Marcus and Zelman's fee request should
be given no weight as it “offers an unhelpful net
opinion with no analysis.” (Def. Opp. Br. at 4; Docket
Entry No. 52). Defendants further take issue with Messrs.
Marcus and Zelman's references to other cases in which
their requested hourly rates were upheld, noting that
“their fee requests were
unopposed” in same.
(Id. at 5). Defendants contend that a better
benchmark for determining the reasonableness of the requested
hourly rates is by reference to the Community Legal Services
of Philadelphia (“CLS”) fee schedule, which has
been utilized in this District before. (Id. at 5-6
(citing Machado, 2017 WL 2838458, at *2-3)). Based
on same, Defendants suggest hourly rates of $270 and $225 per
hour for Messrs. Marcus and Zelman respectively.
(Id. at 6). Defendants note that such rates would be
consistent with the Court's award of $15, 000 in
Beneli v. BCA Fin. Servs., Inc., Civ. Act. No.
16-2737, 2018 WL 734673, at *16 (D.N.J. Feb. 6, 2018), which
effectively worked out to a blended rate of $251 per hour for
the work performed by Messrs. Marcus and Zelman.
(Id. at 6).
Defendants' objections to the contrary, the Court finds
the hourly rates requested by Messrs. Marcus and Zelman to be
reasonable. In reaching this conclusion, the Court gives no
weight to the opinions set forth in Mr. Pinilis' letter.
As Defendants note, Mr. Pinilis does not provide the bases
for his opinion that the hourly rates requested by Messrs.
Marcus and Zelman are “consistent with those charged by
other lawyers, with similar experience, in the general
community.” (Letter from William J. Pinilis to Hon.
Tonianne J. Bongiovanni of 3/14/2018 at 2). Without any
reference to fee surveys of rates charged by attorneys with
similar experience in New Jersey or an analysis of similar
fee applications in this District or other evidence, Mr.
Pinilis' conclusions about the reasonableness of the
requested hourly rates are unpersuasive.Nevertheless, the
Court finds that Messrs. Marcus and Zelman have adequately
supported their requested rates by reference to their
experience, years of practice, the 2015-2016 United States
Consumer Law Attorney Fee Survey Report (the “CLA
Report”) and the fees they have been awarded in other
FDCPA cases in this District. As set forth in their
declarations, Mr. Marcus has been practicing law in New
Jersey for 8 years and Mr. Zelman for 5. Both Messrs. Marcus
and Zelman focus their practice on consumer protection law.
Indeed, collectively in the District of New Jersey alone,
Messrs. Marcus and Zelman have pursued at least 296 FDCPA
in two recent cases in this District, the Court determined
that hourly rates requested by Messrs. Marcus and Zelman
similar to those requested here were reasonable.
Specifically, in Town & Country Jewelers, LLC v.
Meadowbrook Insurance Group, Inc., Civil Action No. 15-
2519 (PGS), the Court approved and found reasonable Mr.
Marcus' requested hourly rate of $450.00 per hour and Mr.
Zelman's requested hourly rate of $350.00 per hour.
Similarly, in Truglio v. CBE Group, Inc., Civil
Action No. 15-3813 (TJB), the Court approved and found
reasonable Mr. Marcus' requested hourly rate of $450.00
per hour and Mr. Zelman's requested hourly rate of
$350.00 per hour. While the Court acknowledges that Messrs.
Marcus and Zelman's fee petitions in those cases were
unopposed, that does not alter the fact that the Court
determined that the hourly rates requested were appropriate.
In addition, while the Court in Beneli approved a
fee petition that yielded Messrs. Marcus and Zelman an
effective blended hourly rate of $251 per hour, the Court
specifically declined “to rule on whether Counsel's
$425/hour and $350/hour fees are ...