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Patricka R. Forde v. National Enterprise Systems

November 30, 2011



THIS CAUSE is before the Court on Plaintiff Patricka R. Forde's Verified Motion for an Award of Costs and Attorney's Fees [DE 23] ("Motion"). The Court has considered the Motion, the Brief in Support of the Motion [DE 24] ("Brief"), the Declaration of Donald A. Yarbrough [DE 25] ("Yarbrough Declaration"), Defendant National Enterprise Systems, Inc.'s Response [DE 26], Plaintiff's Reply [DE 27], the Supplemental Declaration of Donald A. Yarbrough [DE 28] ("Yarbrough Supplemental Declaration"), and is otherwise fully advised in the premises.


On May 24, 2011, Plaintiff Patricka R. Forde filed this action against National Enterprise Systems, Inc. for alleged violations of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692, et seq. ("FDCPA"), and the Telephone Consumer Protection Act, 47 U.S.C § 227, et seq. ("TCPA") [DE 1]. On August 19, 2011, the Court entered a Partial Judgment [DE 17] on the FDCPA claims, and on August 30, 2011, the Court entered an Order Granting Motion to Dismiss for Lack of Subject Matter Jurisdiction [DE 22], dismissing without prejudice the remaining TCPA claim.

On October 18, 2011, Plaintiff filed the instant Motion, requesting $4,770.50 in attorney's fees and $380.00 in costs. On November 22, 2011, Plaintiff filed the Yarbrough Supplemental Declaration, requesting an additional $1,022.00 in attorney's fees incurred since filing the instant Motion.


In an individual action under the FDCPA, in addition to damages, a debt collector may be liable for "the costs of the action, together with a reasonable attorney's fee as determined by the court." 15 U.S.C. § 1692k(a). Defendant does not dispute that Plaintiff is entitled to some amount of attorneys's fees in this case. See Resp. at 14; see also 15 U.S.C. § 1692k(a)(3). The only contention is the amount of fees to which she is entitled.

A. Attorney's Fees

The FDCPA entitles the prevailing party to a "reasonable attorney's fee." 15 U.S.C. § 1692k(a)(3). A reasonable award for attorney's fees is calculated using the lodestar method, which requires the Court to multiply the reasonable hours expended by a reasonable hourly rate. See Hensley v. Eckerhart, 461 U.S. 424, 433 (1983); Norman v. Hous. Auth. of Montgomery, 836 F.2d 1292, 1299 (11th Cir. 1988); Cuban Museum of Arts & Culture, Inc. v. City of Miami, 771 F. Supp. 1190, 1191 (S.D. Fla. 1991). The fee applicant bears the burden of establishing entitlement to the award and documenting the appropriate hours and hourly rates. ACLU v. Barnes, 168 F.3d 423 (11th Cir. 1999). In determining what fee constitutes a "reasonable" hourly rate and what number of compensable hours constitute a "reasonable" number of hours, a court may consider the 12 factors enumerated in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974). Accord Farley v. Nationwide Mut. Ins. Co., 197 F.3d 1322, 1340 (11th Cir. 1999).*fn1 In addition, a district court is "empowered to exercise discretion in determining whether an award is to be made and if so its reasonableness." Cullens v. Ga. Dep't of Transp., 29 F.3d 1489, 1492-93 (11th Cir. 1994).

1. Reasonable Hourly Rate

The first step in calculating the lodestar amount is determining the reasonable hourly rate. "A reasonable hourly rate is the prevailing market rate in the relevant legal community for similar services, by lawyers of reasonably comparable skills, experience, and reputation." Norman, 836 F.2d at 1299. The applicant bears the burden of producing satisfactory evidence that the requested rate is in line with prevailing market rates. Id. Satisfactory evidenceis at a minimum more than the affidavit of the attorney performing the work and can involve direct evidence of charges by lawyers under similar circumstances or opinion evidence. Id.

Plaintiff was represented in this litigation by Donald A. Yarbrough. The Motion, as well as the Yarbrough Declaration and the Invoices [DE's 25-1, 28-1] attached to the Yarbrough Declaration and Supplemental Yarbrough Declaration, identify Mr. Yarbrough's billing rate as $350 per hour. Mot. ¶ 9; Yarbrough Decl. ¶ 13; Invoices. However, Defendant contends that "[b]ased upon Attorney Yarbrough's level of experience and the routine nature of this case, his rate should be no more than $300 an hour." Resp. at 12.

According to the Yarbrough Declaration, Mr. Yarbrough's rate used to be $300 per hour, but he is now in his twelfth year of practice as an attorney, and he has extensive experience in consumer debt collection. Yarbrough Decl. ¶ 13. Mr. Yarbrough highlights that he has been awarded $350 per hour in a number of other cases in this district. Id.*fn2 Defendant responds that "[i]n the cases cited by Plaintiff's counsel to support a $350 hourly rate, it appears that rarely was his rate contested." Resp. at 10. Additionally, Defendant emphasizes that numerous cases in this district have awarded Mr. Yarbrough only $300 an hour. See id. at 11-12.*fn3 In light of the parties' arguments, the record evidence, and the case law in this district, the Court finds that a billing rate of $325.00 per hour is reasonable.

2. Reasonable Number of Hours Expended

As noted above, the second step in calculating the lodestar amount involves determining whether counsel expended a reasonable number of hours on the case. Again, a fee applicant bears the burden of documenting the appropriate hours expended so that the court may properly assess the time claimed for each activity. See Hensley, 461 U.S. at 433; Norman, 836 F.2d at 1301. Excessive, redundant ...

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