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Martz v. PNC Bank

May 5, 2008

PAUL A. MARTZ, PLAINTIFF,
v.
PNC BANK, N.A., DEFENDANT.



The opinion of the court was delivered by: Mitchell, Magistrate Judge

MEMORANDUM & OPINION

Presently before the Court is a motion for attorneys' fees and reimbursement of expenses submitted by plaintiff's counsel's (Document No. 60). For reasons discussed below, the motion will be granted, and plaintiffs' counsel will be awarded attorneys' fees in the amount of $24,866.20 and costs in the amount of $545.00.

On August 11, 2006, plaintiff Paul A. Martz commenced this action by filing a two-count purported class complaint against defendant PNC Bank, N.A. ("PNC Bank"). In his complaint, the plaintiff alleged that PNC Bank violated the Electronic Fund Transfers Act, 15 U.S.C. § 1693, et seq., and regulations promulgated thereunder, 12 C.F.R. § 205, et seq., (collectively, "EFTA") (Count I), for which it was unjustly enriched (Count II). According to the plaintiff, PNC Bank violated EFTA, because its automated teller machines ("ATMs") did not provide him notice that a fee will be charged and collected as part of his transaction; rather, its ATMs informed him that a charge may be assessed, even though PNC then assessed a fee and collected it as part of the electronic fund transfer.

On September 21, 2006, PNC Bank moved to dismiss the unjust enrichment claim in Count II for failure to state a viable claim, and to partially dismiss the EFTA claim in Count I to the extent the plaintiff sought actual damages. In an Order dated December 29, 2006, the Court granted PNC Bank's motion to dismiss Count II and denied it in all other respects.*fn1

On May 1, 2007, the plaintiff moved for class certification. PNC Bank opposed the motion for class certification on several grounds, noting that the plaintiff testified at his deposition that he did not know if PNC Bank's ATM screens notified him that he "may" be charged a fee, "will" be charged a fee, or provided any notice at all when he conducted his transactions. In an Order dated August 15, 2007, the Court denied the plaintiff's motion for class certification.*fn2

On January 30, 2008, the parties executed a Settlement Agreement and Release which provides in pertinent part:

1. In exchange for the full and complete settlement and release of all Claims [in this case], PNC Bank shall pay to Mr. Martz the sum of U.S. $1,100.00...

2. U.S. Magistrate Judge Mitchell shall decide the amount of attorneys' fees and costs, if any, to which Mr. Martz and his counsel are entitled ... .........

10. Nothing contained herein is intended as an admission of liability, fault, or wrongdoing by any Party hereto. To the contrary, PNC Bank denies each and every of Mr. Martz's allegations against it. Specifically, PNC Bank denies that it violated the EFTA, that the notice on its ATM's is in any way inadequate, or that it damaged or harmed Mr. Martz in any way.*fn3

On February 20, 2008, the parties filed a stipulation of dismissal with prejudice pursuant to F.R.Civ.P. 41(a)(1), stipulating "that this action is dismissed with prejudice but ... the Magistrate Judge shall retain jurisdiction over this matter [to decide the remaining issue of the amount of attorneys' fees and costs, if any, to which plaintiff and his counsel are entitled]."*fn4 In an Order dated February 20, 2008, the Court directed the plaintiff to file a motion on the issue of attorneys' fees and costs, and a briefing schedule was set.

On March 10, 2008, plaintiff's counsel moved for an award of attorneys' fees and reimbursement of expenses which they support through a declaration from Alfred G. Yates, Jr., one of plaintiff's attorneys (the "Yates' declaration"). In their motion, plaintiff's counsel seek attorneys' fees in the amount of $101,799.06 and the reimbursement of expenses in the amount of $1,072.72 in connection with the prosecution of this case.*fn5 In the Yates' declaration and exhibits attached thereto, plaintiff's counsel aver that their law firms of Ademi & O'Reilly, LLP, Miller Law, LLC, Faucher and Cafferty, LLP, and the Law Office of Alfred G. Yates, Jr., PC spent 305.86 hours in the prosecution of this case with an aggregate lodestar of $101,799.06, for which they incurred aggregate expenses of $1,072.52.*fn6

In relevant part, EFTA provides:

Except as otherwise provided by this section and section 1693h of this title, any person who fails to comply with any provision of this subchapter with respect to any consumer, except for an error resolved in accordance with section 1693f of this title, is liable to such consumer in an amount equal to the sum of -- .....

(3) in the case of any successful action to enforce the foregoing liability, the costs of the action, together with a reasonable ...


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