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Eve Zavodnick v. Gordon & Weisberg

June 6, 2012

EVE ZAVODNICK, PLAINTIFF,
v.
GORDON & WEISBERG, P.C., DEFENDANT.



The opinion of the court was delivered by: Diamond, J.

MEMORANDUM

Having obtained a $1,500 settlement for Plaintiff before discovery began in this simple, Fair Debt Collection Practices Act case, the law firm of Kimmel & Silverman now seeks the award of $9,786.50 in fees and $350 in costs. Defendant Gordon & Weisberg argues that the fee request is excessive. I agree. It appears that Kimmel & Silverman actually performed precious little original work on Plaintiff's behalf. As disturbing are Kimmel & Silverman's specious arguments and evidence, which Courts in this Circuit have repeatedly and decisively rejected:

[T]he Court notes at the outset that this is by no means the first time that Kimmel & Silverman's fees have been reduced by a [C]court . . . Accordingly, the Court finds itself puzzling over Kimmel & Silverman's insistence on claiming the same fee rates in each of its FDCPA cases. Should another such petition reach this Court in the future, we hope not to have to puzzle over it again.

Levy v. Global Credit and Collection Corp., 10-4229, 2011 WL 5117855 (D. N.J. Oct. 27, 2011) (citations omitted); see also Mary Pat Gallagher, Fair Debt Collection Practices Firm Chastened For Inflated Fee Request, N.J. L.J., Nov. 7, 2011. For the reasons that follow, I will allow the firm its costs but reduce its fee award to $3,053. I am compelled to admonish Kimmel & Silverman that it may not continue with impunity to describe "cut and paste" efforts as original or to advance arguments and evidence it knows to be baseless.

I.Background

On December 8, 2010, Plaintiff Eva Zavodnick filed an eleven page Complaint in this Court, alleging that Defendant, a debt collection firm, violated the FDCPA. 15 U.S.C. § 1692 et seq. The bulk of the Complaint includes boilerplate allegations respecting the Act, its purposes, and the liability it imposes. Perhaps four pages include factual and legal allegations tailored to this matter. Indeed, with the exception of those four pages, the Complaint is identical to those Kimmel & Silverman has earlier filed on behalf of other clients. See Overly v. Global Credit and Collection Corp. Inc., No. 10-2392 (M.D. Pa. Complaint filed Nov. 18, 2010); Williams v. NCO Fin. Sys., Inc., No. 10-5766 (E.D. Pa. Complaint filed Oct. 29, 2010); Levy v. Global Credit and Collection Corp., 10-4229 (D. N.J. Complaint filed Aug. 18, 2010); Conklin v. Pressler and Pressler LLP, 10-3566 (D. N.J. Complaint filed July 14, 2010).

Ms. Zavodnick charged that in seeking to collect a $2,211.68 debt, Defendant employed improper methods: 1) failing conspicuously to identify itself as a debt collector on the cover page of a December 3, 2009 collection letter; 2) stating incorrectly that Plaintiff owed a second debt; 3) communicating with Plaintiff's husband about the debt without Plaintiff's consent; 4) harassing Plaintiff; and 5) taking other unspecified actions.

On February 17, 2011, the Complaint was served on Defendant, which had until March 10, 2011 to answer. (Doc. No. 3.) Having received no responsive pleadings, on April 11, 2011, my Chambers issued written notice that Plaintiff had until April 15, 2011 to seek default judgment. (Doc. No. 4.) Defendant submitted its Answer on April 12, 2011. (Doc. No. 6.) On April 18, 2011, Plaintiff received Defendant's Offer of Judgment, which she accepted on April 26, 2011. The Offer is clearly dated April 18, 2011, and provides in relevant part that Defendant offers to allow judgment to be taken against it in the amount of $1,500.00 (One Thousand Five Hundred Dollars and no cents), plus 1) your reasonable attorneys fees and costs, through the date of this Offer of Judgment, as may be determined by the Court; 2) your actual costs for the filing fee of your complaint in the U.S. District Court; and, 3) your actual costs for service of the summons and complaint upon the Defendant. (Doc. No. 13, Ex. A.) (emphasis added).

In addition to its costs, Plaintiff seeks counsel fees incurred from September 17, 2010- the date of the initial client interview-through May 10, 2011-when Plaintiff filed the instant Petition. Kimmel & Silverman employed four lawyers (whose hourly rates range from $300 to $425); a "law clerk" (whose hourly rate is $180); three paralegals (whose hourly rates range from $155 to $165); and an "IT specialist" (whose hourly rate is $150). Together, this group of nine professionals spent 32.2 hours on this matter. These are largely the same Kimmel & Silverman professionals whose rates and hours have been substantially and repeatedly reduced by Courts in this Circuit. See Conklin v. Pressler and Pressler LLP, 10-3566, 2012 WL 569384 (D. N.J. Feb. 21, 2012) (Kimmel & Silverman claimed fees of $28,005.70 cut to $16,387.70); Freid v. Nat'l Action Fin. Servs., Inc., No. 10-2870, 2011 WL 6934845 (D. N.J. Dec. 29, 2011) (claimed fees of $97,028.59 cut to $11,994); Levy v. Global Credit and Collection Corp., No. 10-4229, 2011 WL 5117855 (D. N.J. Oct. 27, 2011) (claimed fees of $9,211.50 cut to $5,795.00); Overly v. Global Credit and Collection Corp. Inc., No. 10-2392, 2011 WL 2651807 (M.D. Pa. July 6, 2011) (claimed fees of $9,000 cut to $2,457.20).

II.Discussion

Defendant argues that: 1) Plaintiff is precluded from recovering fees for work done after she received the Offer of Judgment; 2) Kimmel & Silverman's hourly rates are unreasonably high; and 3) Kimmel & Silverman's hours are excessive, non-compensable, and duplicative. I agree with all three contentions.

A. Compensable Period

Defendant's Offer provides that judgment entered in Plaintiff's favor shall include "reasonable attorneys fees and costs, through the date of this Offer of Judgment, as may be determined by the Court." (emphasis added). Plaintiff does not dispute that Defendant served the Offer of Judgment on April 18, 2011. Plaintiff nevertheless seeks fees for work Kimmel & Silverman performed through May 10, 2011, arguing that the "language is ambiguous as it is unclear what the 'date of this Offer of Judgment' is."(Doc. No. 13 at 14.) In support, Plaintiff misstates the holding of "the Honorable Cynthia M. Ruff (sic)" of this Court in Angel Rivera v. NCO Fin. Sys., Inc., No. 11-00402 (E.D. Pa. May 2, 2011). Judge Rufe there permitted Kimmel & Silverman to recover fees through the Offer's acceptance and filing because the Offer was not dated. Here, the Offer of Judgment is dated and explicitly provides for the recovery of reasonable costs and fees "through the date of this Offer of Judgment."

Interpreting language identical to that at issue here, Judge Slomsky twice ruled that the Offer unambiguously excluded fees Kimmel & Silverman incurred after the Offer was served. Alexander v. NCO Fin. Sys., Inc., No. 11-401, 2011 WL 2415156 (E.D. Pa. June 16, 2011) (excluded fees incurred after the date the Offer was served); Williams v. NCO Fin. Sys., Inc., No. 10-5766, 2011 U.S. Dist. LEXIS 50635, at *9-10 (E.D. Pa. May 11, 2011) (same). I agree with Judge Slomsky. See Princeton Ins. Co. v. Converium Reins. (North America), 344 F. App'x 759, 763 (3d Cir. 2009) (quoting 9 Williston on Contracts § 46 (rev. ed. 1945) ("in interpreting a contract, all parts of the writing and every word of it, will, if possible, be given effect . . .").

If Plaintiff is determined to collect fees incurred after the April 18th cut-off, she should have rejected the Offer and negotiated for fees beyond that date. See Andrews v. Prof'l Bureau of Collections of Md., Inc. 270 F.R.D. 205 (M.D. Pa. 2010). Because she did not do so, I will hold her to the benefit of her bargain.

Plaintiff also seeks fees for the 3.4 hours Kimmel & Silverman spent preparing the instant Fee Petition. Such fees are recoverable "because the policies behind statutory fee awards apply equally to time spent preparing the fee petition." Bagby v. Beal, 606 F.2d 411, 416 (3d Cir. 1979). Nevertheless, "courts also make clear that an Offer of Judgment is a contract and if a party has agreed to the accrual date therein, that date will control." Williams, 2011 U.S. Dist. LEXIS 50635 at *10 n.2 (collecting cases).

Because the instant Offer states that counsel fees might be determined "by the Court," the Parties plainly contemplated that Plaintiff might petition for those fees. Because the preparation of that petition would necessarily take place after the Offer's April 18th cut-off, any fees incurred for that preparation are necessarily excluded. See Basha v. Mitsubishi Motor Credit of America, Inc., 336 F.3d 451, 453-54 (6th Cir. 2003) (giving effect to the settlement agreement's plain language).

I also note that only 3 pages of Ms. Zavodnick's 34-page Fee Petition (filed May 11, 2011) include allegations tailored to this case; the remaining 30 pages include boilerplate discussions of the FDCPA and the awarding of fees. Indeed, these 30 pages are identical to those included in Kimmel & Silverman's 33-page Fee Petitions in Angel Rivera v. NCO Fin. Sys., Inc., No. 11-0402 (E.D. Pa. Petition filed Apr. 13, 2011) and Alexander v. NCO Fin. Sys., Inc., No. 11-0401 (E.D. Pa. Petition filed Apr. 13, 2011), and 32-page Petition in Williams v. NCO Fin. Sys., Inc., No. 10-5766 (E.D. Pa. Petition filed March 17, 2011).

Remarkably, in the Zavodnick Petition, Kimmel & Silverman protests repeatedly that "[t]here is no 'assembly line' approach to handling FDCPA cases." (Doc. No. 13 at 13) ("At Kimmel & Silverman, each FDCPA case must . . . be evaluated and handled on an individual basis."); (Id. at 16) ("[T]he pleadings in this matter do not read like 'cookie cutter' vague allegations from a generic form. . . .") Yet, an examination of the two most substantial documents Kimmel & Silverman filed in this matter-the Complaint and the Fee Petition- confirm that the great bulk of Kimmel & Silverman's work was not original, but simply copied from work it had done earlier in other cases. This suggests, to put it kindly, that the claimed 3.4 hours of attorney time were not actually spent preparing Ms. Zavodnick's Fee Petition.

In any event, I will exclude the 3.4 hours purportedly spent preparing the Petition because the alleged work was ...


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