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Lahneen Slantis v. Capozzi & Associates

June 24, 2011


The opinion of the court was delivered by: Judge Conner


Plaintiff Lahneen Slantis ("Slantis") brought this action against defendant Capozzi & Associates, P.C. ("Capozzi") pursuant to the Fair Credit Reporting Act, 15 U.S.C. §1681 et seq. Presently before the court is Slantis' motion (Doc. 84) for award of costs and attorneys' fees pursuant to Fed. R. Civ. P. 54(d)(1) and (2). Capozzi opposes the amount claimed, arguing that the hours Slantis' counsel billed and the rates at which they billed were excessive, and that several expenses are not recoverable under statutory provisions. The motion has been fully briefed and is ripe for disposition. For the following reasons, the court will grant the motion in part and deny it in part.

I. Background

Slantis is represented in this action by Gordon R. Leech ("Leech") and Frank P. Clark ("Clark"). Pursuant to the stipulation entered into by the parties on January 18, 2011 (Doc. 81), the parties settled all claims with the exception of the award of attorneys' fees and costs, over which this court has retained jurisdiction. (Doc. 82).

Clark is a member of the bar of the U.S. District Court for the Middle District of Pennsylvania and concentrates his practice in the areas of employment law, education law, and related litigation. (Doc. 84 ¶ 6). Although an experienced litigator, Clark does not have significant prior experience litigating FCRA claims. Accordingly, Clark sought co-counsel with additional expertise-Attorney Leech. (Doc. 85 at 2). Leech practices primarily in Wisconsin, and he has previously handled FCRA cases in several jurisdictions. (Id.)

Slantis' counsel billed a total of 310 hours: Clark billed 93.1 hours, along with his paralegal, who billed 2.5 hours; and Leech billed 210.58 hours. (Id. at 6). Both attorneys billed for their time at a rate of $325 per hour, and paralegal time was billed at $100 per hour, for a total fee of $98,946.00. (Id. at 7). In addition, Slantis requests an award of costs in the amount of $2,122.32 for expenses related to litigation. (Id. at 7).

II. Legal Standard -- 15 U.S.C. §1681n(a)(3) and 1681o(a)(2)

The relevant language for both willful and negligent noncompliance in sections 1681n(a)(3) and 1681o(a)(2) is identical and reads: a party who is found liable under this section is liable "in an amount equal to the sum of . . . the costs of the action together with reasonable attorney's fees as determined by the court." 15 U.S.C. §1681o(a)(2) and 1681n(a)(3). It is initially the burden of the moving party to demonstrate the reasonableness of the fees and costs requested under a fee shifting statute. Smith v. Phila Hous. Auth., 107 F.3d 223, 225 (3d Cir. 1997). The method the court uses for determining the reasonableness of a requested fee is the lodestar formula, which multiplies the number of hours reasonably expended by a reasonable hourly rate. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983); Maldonado v. Houstoun, 256 F.3d 181, 184 (3d Cir. 2001). "When the applicant for a fee has carried his burden of showing that the claimed rates and number of hours are reasonable, the resulting product is presumed to be the reasonable fee to which counsel is entitled." Delaware Valley Citizens' Council, 478 U.S. 546, 564 (1986) (internal quotation omitted). The burden then shifts to the opposing party to demonstrate the unreasonableness of the hours and rate. Rode v. Dellarciprete, 892 F.2d 1177, 1183 (3d Cir. 1990). The court cannot decrease the award based on factors not raised by the adverse party. Smith, 107 F.3d at 225.

III. Discussion

A. Billing Rate

"[R]easonable fees are to be calculated according to the prevailing market rates in the relevant community." Blum v. Stenson, 465 U.S. 886, 895 (1984); Maldonado, 256 F.3d at 184. The court "should assess the experience and skill of the prevailing party's attorneys and compare their rates to the rates prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation." Dellarciprete, 892 F.2d at 1183; Maldonado, 256 F.3d at 184.

Slantis' counsel seeks attorney's fees at the rate of $325.00 per hour. In support of the reasonableness of this hourly rate, plaintiff provides the declaration of two attorneys: Bruce Warshawskey of the Harrisburg law firm of Cunningham & Chernicoff and James Francis of the Philadelphia law firm of Francis & Mailman. The Francis declaration is problematic in that it originates from another market in another district, to wit: Philadelphia, the Eastern District of Pennsylvania. It is conclusory and it does not provide concrete support for the prevailing rate for an attorney in the Middle District of Pennsylvania. The Warshawsky declaration is more helpful, but it too is conclusory on the precise issue of the prevailing market rate in this district; for example, nowhere does Mr. Warshawsky identify his standard hourly rate.

Very recently, Honorable Sylvia Rambo of this court determined that an attorney in the general field of employment litigation, with fifteen years of combined experience in human resources and litigation, a masters degree in trial advocacy, and a substantial number of jury verdicts and appellate decisions in her repertoire, was entitled to a reasonable hourly rate of $225.00. Carey v. City of Wilkes-Barre, No. 3:05-CV-2093 (M.D. Pa. May 5, 2011) (Doc. 186 at 4). In addition, this court has awarded lower hourly rates in several cases. See Moore v. Susquehanna Area Reg'l Airport Auth., No. 02-CV-535, 2005 WL 2430790 (M.D. Pa. Sept. 30, 2005) ($200.00 deemed reasonable hourly rate), Lohman v. Duryea Borough, No. 3:05-CV-1423 (M.D. Pa. July 30, 2008) aff'd, 574 F.3d 163 (3d Cir. 2009) ($215.00 deemed reasonable hourly rate). In one recent case, Harrisburg attorneys were awarded a higher hourly rate, see Lewis v. Smith, et al., 361 F. App'x 42 (3d Cir. 2010) ($300.00 deemed reasonable hourly rate). After considering the comparable skill, experience and reputation of counsel in all of these cases, as well as the declarations and exhibits presented by the parties, and assessing the skill and experience of plaintiff's counsel, the court concludes that $250.00 per hour is a reasonable rate for both Attorney Leech and Attorney Clark.

B. Reasonableness of Hours Spent

The court must also examine whether all the hours spent were reasonable. Capozzi argues that the experience and background of attorneys Clark and Leech are "very similar," and that there was therefore no reason why Slantis required both attorneys. (See Doc. 88, 3-5). The court does not find this argument persuasive. It is not uncommon for multiple attorneys to represent a single client. In this case, Clark did not have the same experience as Leech. It is understandable that Clark would wish to have co-counsel with more experience in the relevant area of law. Moreover, it is clear that Attorney Leech was lead counsel and that Attorney Clark was functioning as the resident counsel, performing both substantive and procedural tasks. Nevertheless, the court will not approve fees for work which is purely duplicative or unnecessary.

1. Phone Calls

Capozzi challenges Clark's billing of forty phone calls, totaling four hours, where his time sheet reads: "left message." The challenged phone calls occurred over a total time period of nearly three years. It is within the normal course of business for an attorney to bill a client for making a call and leaving a message when the call is not answered. ...

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