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Flory v. Mccabe, Weisberg & Conway, LLC

United States District Court, D. New Jersey

June 20, 2019

DINA FLORY, Plaintiff,
v.
MCCABE, WEISBERG & CONWAY, LLC, et al., Defendants.

          MEMORANDUM OPINION

          HONORABLE TONIANNE J. BONGIOVANNI, UNITED STATES MAGISTRATE JUDGE.

         This matter comes before the Court upon Plaintiff Dina Flory's (“Plaintiff”) motion for attorney's fees and costs. [Docket Entry No. 9]. Defendants McCabe, Weisberg & Conway, LLC (“McCabe”), and First Atlantic Credit Union (“First Atlantic) (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 attorney's 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.

         I. Background and Procedural History

         Plaintiff filed this action against Defendants on October 31, 2018, alleging that Defendants made false, deceptive and misleading representations, and used 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 First Atlantic. On November 21, 2018, after the Complaint was served, but prior to any Answer or other response being filed, Defendants filed a Notice of Acceptance of Offer of Judgment Pursuant to Rule 68(a) of the Federal Rules of Civil Procedure (“Acceptance of Offer of Judgment”). (Docket Entry No. 7). On November 29, 2019, the Court entered an Order reflecting the Acceptance of Offer of Judgment. Order of 11/29/2018; Docket Entry No. 8. Because the parties did not reach an agreement regarding the amount of attorney's fees and costs to be awarded, in Its Order, the Court also set a briefing schedule for such a motion. Id. at 2. The parties complied with the schedule set by the Court and Plaintiff's motion (Docket Entry No. 9) is ripe for the Court's consideration.

         II. Legal Standard

         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 omitted)).

         The “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 Cir. 1989).

         Further, 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” attorney's 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, 2011).

         III. Analysis

         A. Reasonable Hourly Rate

         Here, Plaintiff seeks to recover attorney's fees for her attorney, Ira J. Metrick, Esq. Mr. Metrick seeks to be reimbursed at a rate of $350 per hour. In Plaintiff's opening papers, Mr. Metrick submitted a certification detailing his credentials and experience in support of his claimed hourly rate. In this regard, Mr. Metrick notes that he was licensed to practice law in New Jersey in 1994 and indicates that he is a solo practitioner consumer defense attorney that devotes his practice primarily to “Foreclosure Defense, Loan Modifications and issues that arise from those interactions with lenders and their Counsel.” (Metrick Cert. ¶3, 4; Docket Entry No. 9-2). (Id. ¶ 3). With respect to his specific experience with FDCPA cases, Mr. Metrick notes that in the past 3-4 years he “began taking a limited amount of FDCPA cases which resulted from foreclosure issues.” (Id. ¶4). Mr. Metrick states that his requested hourly rate of $350 per hour “is comparable to other attorneys practicing in Middlesex and Monmouth Counties” and indicates that “[t]his comparison is made based on a review of Affidavits of Services submitted to me in other matters, and through discussions with colleagues.” (Id. ¶ 18).

         Defendants' object to Mr. Metrick's requested hourly rate, arguing that Mr. Metrick “has submitted no evidence in support of the local market that would justify his requested rate of $350/hour[, ]” but, instead, relies solely on a “self-serving Fee Certification that discusses minimally his practice and experience[.]” (Def. Opp. at 5; Docket Entry No. 11). Indeed, Defendants note that Mr. Metrick did not even attach the Affidavits of Services he reviewed to his fee application, nor did he discuss “the details of the claims/litigation they concern, or the experience of the attorneys' who provided them[.]” (Id. at 6). As a result, Defendants contend that Plaintiff's “bare bones presentation” does not “remotely” represent “adequate proof of the reasonableness of [Mr. Metrick's] fee application.” (Id.)

         After his proposed rate was challenged by Defendants, Mr. Metrick, in Plaintiff's reply, provided additional support for his claimed hourly rate. In this regard, Plaintiff pointed to the Laffey Matrix, the United States Consumer Law Attorney Fee Survey Report (limited to New Jersey) for 2015-2016, as well as a multitude of orders entered by other United States District Courts, which reimbursed him at a rate of at least $350 per hour. Based on same, Mr. Metrick argues that he has established the reasonableness of his requested $350 per hour rate.

         Despite Defendants' objections, the Court finds the hourly rate requested by Mr. Metrick is reasonable. In reaching this conclusion, the Court notes that Mr. Metrick's initial Certification was insufficient to carry his burden. While he has been practicing law in New Jersey for quite some time, his years of FDCPA practice is more limited. Further, simply referencing “Affidavits of Services” submitted by peers without producing same to the Court or at least describing the substance of his peers' affidavits, including the types of claims and the experience of the attorneys involved, does not establish “the ...


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