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Pape v. Law Offices of Frank N. Peluso, P.C.

United States District Court, D. Connecticut

February 25, 2016



Joan Glazer Margolis, United States Magistrate Judge.

The factual and procedural history behind this lawsuit, filed under the Fair Debt Collection Practices Act ["FDCPA"], 15 U.S.C. § 1692, the Connecticut Creditor's Collection Practices Act, Conn. Gen. Stat. § 36a-648, and the Connecticut Unfair Trade Practices Act, Conn. Gen. Stat. § 42-110g, has been set forth in considerable detail in Senior U.S. District Judge Alfred V. Covello's Ruling on the Parties' Cross-Motions for Summary Judgment, filed March 4, 2014 (Dkt. #51), 2014 WL 839273, in this Magistrate Judge's Ruling on Plaintiff's Motions in Limine, filed October 7, 2015 (Dkt. #80), 2015 WL 5842474, and in this Magistrate Judge's Ruling on Plaintiff's Second Motion In Limine Construed as a Motion for Reconsideration in Light of New Evidence, filed January 5, 2016 (Dkt. #85), 2016 WL 53821 ["January 2016 Ruling"], familiarity with which is presumed. On August 21, 2014, the parties consented to trial before a U.S. Magistrate Judge (Dkt. #62), and on July 2, 2015, the case was transferred to this Magistrate Judge. (Dkt. #68).

The January 2016 Ruling found that the underlying home improvement loan was not commercial in nature but rather a consumer debt, 2016 WL 53821, at *2-4, 10, and that the July 2012 collection letter at issue violated the FDCPA, thereby entitling plaintiff to judgment in his favor in the amount of $1, 000 statutory damages. Id. at *4-10. Plaintiff was instructed to file a Motion for Attorney's Fees, brief, affidavit and exhibits in support by January 29, 2016; defendant's brief in opposition was due by February 19, 2016, and plaintiff's reply brief, if any, was due by March 4, 2016.

On January 26, 2016, plaintiff filed his Fee Application, brief, affidavit ["Faulkner Aff't"], Time Sheets, and exhibits[1] in support (Dkt. #86), in which he requests attorney's fees in the amount of $37, 700, representing 94.25 hours at "the below-market rate of $400 per hour, " plus costs of $1, 624.80. On February 18, 2016, defendant filed his brief in opposition (Dkt. #87); plaintiff filed his reply brief five days later. (Dkt. #88).[2]

As Chief Judge Janet C. Hall summarized less than one year ago:

Under the FDCPA, a plaintiff who successfully prosecutes a defendant's failure to comply with any provision of the FDCPA is entitled to “a reasonable attorney's fee as determined by the court.” 15 U.S.C. § 1692k(a)(3). Where the plaintiff prevails on an FDCPA claim, an award of fees is mandatory even if the plaintiff is not entitled to actual or statutory damages. Savino v. Computer Credit, Inc., 164 F.3d 81, 87 (2d Cir. 1998).

When determining attorney's fees, district courts should:

in exercising its considerable discretion, . . . bear in mind all of the case-specific variables that we and other courts have identified as relevant to the reasonableness of attorney's fees in setting a reasonable hourly rate. The reasonable hourly rate is the rate a paying client would be willing to pay. In determining what rate a paying client would be willing to pay, the district court should consider, among others, the Johnson factors; it should also bear in mind that a reasonable, paying client wishes to spend the minimum necessary to litigate the case effectively. The district court should also consider that such an individual might be able to negotiate with his or her attorneys, using their desire to obtain the reputational benefits that might accrue from being associated with the case. The district court should then use that reasonable hourly rate to calculate what can properly be termed the “presumptively reasonable fee."

Arbor Hill Concerned Citizens Neighborhood Ass'n v. Cnty. of Albany & Albany Cnty. Bd. of Elections, 522 F.3d 182, 190 (2d Cir. 2008). Thus, to calculate a presumptively reasonable fee, the court must:

(1) determine the reasonable hourly rate; (2) determine the number of hours reasonably expended; (3) multiply the two to calculate the presumptively reasonable fee; and (4) make any appropriate adjustments to arrive at the final fee award.
Silver v. Law Offices Howard Lee Schiff, P.C., No. 3:09 cv 912 [(PCD)], 12010 WL 5140851, at *1 (D. Conn. Dec. 16, 2010). As part of the reasonableness analysis, the court should also consider the Johnson factors. Id.; Arbor Hill, 522 F.3d at 190. “After determining the amount of the presumptively reasonable fee, the court may use its discretion to increase or reduce the amount based on the particular circumstances of the case.” Chan v. Sung Yue Tung Corp., [No. 03 CV 6048 (GEL), ] 2007 WL 1373118, at *1 (S.D.N.Y. May 8, 2007).
Palmer v. Midland Funding, LLC, No. 14 CV 691 (JCH), 2015 WL 1897457, at *1-2 (D. Conn. April 27, 2015)(footnote omitted)(emphasis in original). See also Cabala v. Crowley, 736 F.3d 226, 228 (2d Cir. 2013)(a prevailing party under the FDCPA is "presumptively entitled to an award of reasonable attorney's fees"), citing Savino, 164 F.3d at 87 (additional citation omitted); Ferrari v. U.S. Equities Corp., No. 13 CV 395 (JAM), 2015 WL 6383467, at *1 (D. Conn. Oct. 22, 2015), appeal pending; Rousseau v. Morris, No. 11 CV 1794 (SRU), 2014 WL 941476, at *1 (D. Conn. Mar. 11, 2014); Palmer v. Futtner, No. 12 CV 34 (SRU), 2014 WL 943107, at *1 (D. Conn. Mar. 11, 2014); Silver, 2010 WL 5140851, at *1.

Plaintiff seeks an hourly rate of $400, in light of more than forty-five years of experience representing consumers in her "nationally recognized practice in the arcane field of the FDCPA[, ]"[3] and especially because defendant's associate, Leon Cameron, charged $350/hour as a first year associate in 2010 and defendant himself charges $450/hour. (Dkt. #86, at 13-14, Exhs. 3-4, Faulkner Aff't, ¶¶ 1-11; Dkt. #88, at 1). Defendant questions this hourly fee. (Dkt. #87, at 12-13).[4]

In Palmer, Chief Judge Hall recently awarded Attorney Faulkner $400/hour as "a reasonable hourly rate[, ]" over defendants' argument that the prevailing rate awarded to her in prior FDCPA cases was $350/hour. 2015 WL 1897457, at *2.[5] In multiple decisions from this district, Attorney Faulkner was awarded $350/hour, dating back to 2007. See, e.g., Rousseau, 2014 WL 941476, at *1; Palmer v. Futtner, 2014 WL 943107, at *1; Silver, 2010 WL 5140851, at *2; Cabala v. Morris, No. 09 CV 651 (VLB), 2012 WL 3656364, at *6 (D. Conn. Aug. 24, 2012), aff'd on other grounds, 736 F.3d 736 (2d Cir. 2013); Ellis v. Solomon & Solomon, P.C., 05 CV 1623 (JBA), 2009 WL 3418231, at *2 (D. Conn. Oct. 20, 2009); Adams v. A&S Collection Assocs., Inc., 07 CV 347 (JBA)(JGM), 2007 WL 2206935, at *3 (D. Conn. July 23, 2007), modified on other grounds, 2007 WL 2206936 (D. Conn. July 30, 2007); Cooper v. Ellis, Crosby & Assoc., Inc., No. 05 CV 1467 (MRK)(WIG), 2007 WL 1322380, at *3 (D. Conn. May 2, 2007).[6] Consistent with Chief Judge Hall's ...

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