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Grazia A. Puzzangara v. Evans Associates

June 9, 2011



Before the court is plaintiff Grazia A. Puzzangara's petition for an award of attorney's fees and costs in the amount of $4,162.35 pursuant to Federal Rule of Civil Procedure 54(d) and 15 U.S.C. § 1692(k)(a)(3). Defendant opposes plaintiff's petition on various grounds. For the reasons that follow, the court will grant plaintiff's petition and award costs and attorney's fees in the amount of $4,151.54.

I. Background

On January 8, 2010, plaintiff, Grazia A. Puzzangara, filed a complaint alleging that defendants violated the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § § 1692 et seq., in attempting to collect an alleged debt from plaintiff. Defendants submitted an Offer of Judgment pursuant to Rule 68,*fn1 in the amount of $1,500.00, which plaintiff subsequently accepted. Neither party disputes that plaintiff is entitled to reasonable attorney's fees and costs; however, the parties have been unable to agree upon what is "reasonable." Accordingly, plaintiff filed this petition for attorney's fees on May 20, 2010, seeking an award in the amount of $8,268.85*fn2 and defendant filed a brief in opposition on June 15, 2010. On June 21, 2010, plaintiff filed a reply brief, conceding numerous requests and seeking a revised award of $4,162.35.*fn3

II. Discussion

Under the FDCPA, a successful party is entitled to "reasonable attorney's fees as determined by the court." 28 U.S.C. § 1692(k)(a)(3). In setting forth the standard for determining a fee award under the FDCPA, the Third Circuit has observed that "[g]iven the structure of [section 1692k], attorney's fees should not be construed as a special or discretionary remedy; rather, the Act mandates an award of attorney's fees as a means of fulfilling Congress's intent that the Act should be enforced by debtors acting as private attorneys general." Graziano v. Harrison, 950 F.2d 107, 113 (3d Cir. 1991). A court has broad discretion in fashioning a reasonable award of attorney's fees under the FDCPA, and the court may reduce the fee award by an amount to be determined solely by the court, but only if the opposing party objects to the petitioner's application for fees. Interfaith Cmty. Org. v. Honeywell Intern., Inc., 426 F.3d 694, 711 (3d Cir. 2005) (holding that a court cannot reduce an award sua sponte, but rather only in response to specific objections).

The "initial estimate of a reasonable attorney's fee is properly calculated by multiplying the number of hours reasonably expended on the litigation times a reasonable hourly rate." Blum v. Stenson, 465 U.S. 886, 888 (1984) (citing Hensley v. Eckerhart, 461 U.S. 424 (1983)). This method of calculating attorney's fees-the lodestar method- is presumptively reasonable. Rode v. Dellarciprete, 892 F.2d 1177, 1183 (3d Cir. 1990). Excluded from the lodestar calculation are hours not reasonably expended, such as hours attributable to over-staffing, hours that are excessive in light of the experience and skill of the lawyers, and hours that are redundant or otherwise unnecessary. Hensley, 461 U.S. at 434.

While not disputing the entitlement to attorney's fees and costs, defendants disagree with the reasonableness of the attorney's fees submitted by plaintiff's counsel, contending that the amount of hours expended is excessive.*fn4 Defendants allege that the award should not include: (1) the fees and costs associated with service of process; (2) the excessive time that plaintiff's lawyer spent drafting the complaint and communicating with plaintiff; (3) the redundant time that counsel and his law clerk billed for the same conversation; and (4) the excessive amount of time plaintiff's lawyer spent conducting legal research. I will address each of these matters in turn.

(1) Fees and Costs Associated with Service of Process Defendants object to the inclusion of 2.2 hours for identifying defendants in order defendants because there were multiple entities in New York and Pennsylvania using the same or similar name as defendant Evans Associates. Plaintiff further contends that defendants were not properly registered with the departments of state in New York or Pennsylvania and that five attempts were required in order to properly serve defendants.

Defendants argue that 2.2 hours to research defendants' identities is excessive. Specifically, defendants contend that they sent plaintiff a letter identifying the company, which should have alerted plaintiff to defendants' identities. Plaintiff alleges that the company listed on the letterhead was not a registered entity in New York state, and that the company has multiple fictitious names. According to plaintiff's complaint, the entity behind defendant's letter to plaintiff has, at least, five alternative names. Moreover, there are ten Jon Does and ten unnamed business entitites listed in plaintiff's complaint. Given these facts, it is not unreasonable that counsel spent 2.2 hours identifying the proper defendants. Accordingly, these hours are compensable.

Defendants also object to plaintiff's inclusion of .4 hours for supervising service of process because they claim it is a ministerial function that should be billed at a lower rate. Tasks that can be readily delegated to non-professionals are not properly charged at the attorney's hourly rate in a request for attorney's fees. Planned Parenthood of Cent. N.J. v. Att'y Gen. of N.J., 297 F.3d 253, 266 (3d Cir. 2002) (citing Halderman v. Pennhurst Sch. & Hosp., 49 F.3d 939, 942 (3d Cir.1995) ("[W]hen a lawyer spends time on tasks that are easily delegable to non-professional assistance, legal service rates are not applicable.")). On the other hand, at least one court has held that supervision of service of process can be a legal function insofar as it is a necessary prerequisite to acquiring jurisdiction and satisfying due process requirements. See Disabled Patriots of Am., Inc. v. Reserve Hotel, Ltd., 659 F. Supp. 2d 877, 892 (N.D. Ohio 2009) ("Supervision of service of process falls within the realm of legal work and is compensable."). Here, based on the complexity of service, this court agrees that supervising service of process was a legal function and is compensable.

Finally, defendants object to plaintiff's request for the costs associated with service of process.*fn5 Specifically, they argue that plaintiff's counsel should have requested that defendants waive service of process under Rule 4(d). Defendants further contend that plaintiff has a duty under 4(d) to avoid unnecessary costs associated with service of process. Plaintiff's counsel stated that five attempts were required to properly effect service on defendants and that defendants were so difficult to identify that seeking a waiver would have been impracticable. Counsel also indicated that, because of the difficulty of identifying defendants, he was concerned that requesting a waiver would prohibit him from effecting service within the time limits prescribed by the Federal Rules. See Fed. R. Civ. P. 4(m) ("If a defendant is not served within 120 days after the complaint is filed, the court . . . must dismiss the action . . . .").

Given the number of unnamed defendants and the complexity of service, it is not unreasonable that plaintiff's counsel did not ask defendants to waive service. Moreover, Rule 4(d)(1) places the duty of avoiding unnecessary costs on defendants and states that plaintiffs "may" request service of process, indicating that it is permissive. See Powell v. Carey Intern. Inc., 548 F. Supp. 2d 1381, 1357--58 (S.D. Fla. 2008) (holding that plaintiffs are not obliged to request waiver of service under 4(d)); but see Disabled Patriots, 659 F. Supp. 2d at 898--99 (holding that, in the absence of an explanation from plaintiff, the court would not award service of process costs to plaintiff who failed to request service waiver from defendant).*fn6 Accordingly, the costs for service of process are compensable.

(2) Excessive Hours

Defendants also contend that, in light of counsel's skill and experience and the routine nature of plaintiff's claim, it was excessive for counsel to bill (1) 3.2 hours to draft and revise plaintiff's complaint; (2) 2.7 hours to ...

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