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Homer v. The Law Offices of Frederic I. Weinberg & Associates, P.C.

United States District Court, E.D. Pennsylvania

May 16, 2018

RONN HOMER
v.
THE LAW OFFICES OF FREDERIC I. WEINBERG & ASSOCIATES, P.C.

          MEMORANDUM OPINION

          TIMOTHY J. SAVAGE, JUDGE.

         Judgment having been entered in his favor in this action brought under the Fair Debt Collection Practices Act (FDCPA), Ronn Homer has moved for an award of attorney's fees and costs. The defendant, The Law Offices of Frederic I. Weinberg & Associates, P.C., does not contest Homer's entitlement to attorney's fees, but objects to the amount requested, arguing that it is unreasonable and excessive.

         Attorney's Fees Under the FDCPA

         A successful plaintiff in an FDCPA action may recover from the debt collector, as part of damages, a reasonable attorney's fee and costs. 15 U.S.C. § 1692k(a)(3). An award of attorney's fees is not discretionary under the Act. It is mandated. Graziano v. Harrison, 950 F.2d 107, 113 (3d Cir. 1991). Thus, we must determine a reasonable attorney's fee to award Homer.

         Determining the amount of a reasonable attorney's fee requires a two-part analysis. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983); Maldonado v. Houstoun, 256 F.3d 181, 184 (3d Cir. 2001). First, we assess reasonableness of the time spent. Maldonado, 256 F.3d at 184. Second, we determine the reasonableness of the hourly rate charged. Id. Once these two numbers are established, they are multiplied to yield the lodestar, which is presumed to be a reasonable fee. Rode v. Dellarciprete, 892 F.2d 1177, 1183 (3d Cir. 1990). After the lodestar is established, the burden shifts to the opposing party to demonstrate that the fee is unreasonable. Id.

         A request cannot be reduced based on factors not raised by the opposing party. Id. (quoting Bell v. United Princeton Props., 884 F.2d 713, 720 (3d Cir. 1989)). Objections must be specific. See United States v. Eleven Vehicles, Their Equipment & Accessories, 200 F.3d 203, 211-12 (3d Cir. 2000). Nevertheless, once the adverse party specifically objects to a fee request, we have considerable discretion to “adjust the fee award in light of those objections.” Rode, 892 F.2d at 1183 (citations omitted).

         Weinberg contends that Homer's attorney's hourly rate is excessive, and “not in accordance with prevailing rates.”[1] It argues that, absent proof that Homer's attorney actually charged an hourly rate of $675, the prevailing market rate is what rate defense counsel charged to defend this case.[2] Weinberg maintains that the highest fee amount awarded in FDCPA litigation is $400 an hour.[3] Weinberg also objects to certain tasks as administrative and duplicative, not attorney work.[4]

         Homer initially moved for an award of $27, 691.[5] He later amended the amount, excluding 1.9 hours billed by a paralegal and adding 8.4 hours expended by his attorneys on the reply brief.[6] Homer's calculations, including the reductions and additions in time, break down as follows:[7]

Cary Flitter:

39.4 hours x $675 hourly rate

$26, 595

Jody Lopez-Jacobs:

11.1 hours x $240 hourly rate

$ 2, 664

Joan Raughley

3.6 hours x $195 hourly rate

$ 702

Subtotal

$29, 961

Fees and Costs

$ 463[8]

TOTAL

$30, 424

         Hourly Rate

         Weinberg argues that the relevant market rate is the one charged by attorneys to defend FDCPA cases. It points out that its attorney charges less than half what Homer's attorney seeks. It also contends that Homer's attorney, Cary Flitter, does not charge his FDCPA clients $675 an hour.[9]

         The rate is not what defense counsel charges. It is what the market rate is in the legal community. In determining a reasonable hourly rate, we compare the attorney's rates to the market rates in the community for similar services by lawyers of “reasonably comparable skill, experience, and reputation.” Loughner v. Univ. of Pittsburgh, 260 F.3d 173, 180 (3d Cir. 2001) (quoting Rode, 892 F.2d at 1183). Weinberg objects only to Flitter's rate, not his associate's and paralegal's hourly rates.

         Homer maintains that, given the type of work performed and counsel's experience in the field, Flitter's hourly rate of $675 is reasonable. To establish the prevailing market rates in Philadelphia, he provides declarations from David A. Searles, contributing author to Pennsylvania Consumer Law and an experienced litigator, and Thomas G. Wilkinson, Jr., lead editor of the Pennsylvania Ethics Handbook and chair of his firm's Professional Responsibility Committee.[10] Both declarants opine that Flitter's hourly rate is reasonable and consistent with those charged by other firms specializing in consumer credit litigation.[11]

         Homer also relies on the 2017 CLS fee schedule fixing an hourly rate of $620- 650 for attorneys with more than twenty-five years of experience.[12] Flitter, who has practiced for thirty-six years, charges a higher rate than the top of the CLS range. Homer argues that Flitter's considerable expertise and professional background support the extra $25.[13]

         The CLS fee schedule is often used as a guide to determine an appropriate hourly rate. See, e.g., Pelzer v. City of Philadelphia, 771 F.Supp.2d 465, 470 (E.D. Pa. 2011). The Third Circuit has used it. Maldonado, 256 F.3d at 187-88. But, it is not binding. The CLS schedule is based only on years of practice. It does not consider the attorney's experience in the relevant field, the level of participation in a case, and reputation in the field.

         Flitter is an experienced consumer litigation attorney. During his thirty-six years of practice, he has litigated numerous consumer-related cases, lectured at various law schools on consumer law issues, presented on consumer law topics, and contributed to the leading legal treatise in Pennsylvania on consumer law issues.[14] In assessing the reasonableness of his hourly rate, Wilkinson and Searles considered his expertise and success as a consumer protection attorney.[15]

         Weinberg argues that Flitter's rate is not in line with the $300 hourly rate fixed by other district courts in FDCPA cases. It cites to cases that are both factually distinguishable and outside the relevant market.[16] The reasonable hourly rate is calculated according to the prevailing market rate in the relevant community. Loughner, 260 F.3d at 180. Generally, the relevant community is the forum of the litigation. Interfaith Cmty. Org. v. Honeywell ...


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