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Raymond D. Arlozynski, On Behalf of Himself and All Others Similarly Situated v. Rubin & Debski

December 16, 2011

RAYMOND D. ARLOZYNSKI, ON BEHALF OF HIMSELF AND ALL OTHERS SIMILARLY SITUATED, PLAINTIFF,
v.
RUBIN & DEBSKI, P.A., ARTHUR D. RUBIN, AND MICHAEL T. DEBSKI,
DEFENDANTS.



ORDER

This matter is before the Court on consideration of United States Magistrate Judge Anthony E. Porcelli's Report and Recommendation (Doc. # 83), filed on November 21, 2011, recommending that Plaintiff's Motion for an Award of Attorneys' Fees and Expenses (Doc. # 63) be granted in part and denied in part. Specifically, Judge Porcelli recommends that Plaintiff be awarded $33,959.70 in attorneys' fees and $510.05 in costs.

On December 1, 2011, Plaintiff filed an Objection to the Report and Recommendation (Doc. # 84), and Defendants responded (Doc. # 85) on December 14, 2011. For the reasons that follow, the Court adopts the Report and Recommendation.

I. Legal Standard

After conducting a careful and complete review of the findings and recommendations, a district judge may accept, reject or modify the magistrate judge's report and recommendation. 28 U.S.C. § 636(b)(1); Williams v. Wainwright, 681 F.2d 732 (11th Cir. 1982), cert. denied, 459 U.S. 1112 (1983). In the absence of specific objections, there is no requirement that a district judge review factual findings de novo, Garvey v. Vaughn, 993 F.2d 776, 779 n.9 (11th Cir. 1993), and the court may accept, reject or modify, in whole or in part, the findings and recommendations. 28 U.S.C. § 636(b)(1)(C). The district judge reviews legal conclusions de novo, even in the absence of an objection. See Cooper-Houston v. S. Ry. Co., 37 F.3d 603, 604 (11th Cir. 1994); Castro Bobadilla v. Reno, 826 F. Supp. 1428, 1431-32 (S.D. Fla. 1993), aff'd, 28 F.3d 116 (11th Cir. 1994) (Table).

II. Background

Plaintiff filed this Fair Debt Collection Practices Act case on November 13, 2009. (Doc. # 1). On May 17, 2010, the parties jointly sought class certification. (Doc. # 25). On June 4, 2010, the Court certified the following class:

(i) all Florida residents to whom Defendants left a telephone message (ii) in which Defendants failed to state it is from a debt collector, and/or that it was an attempt to collect a debt (iii) in an attempt to collect a debt incurred for personal, family, or household purposes allegedly due Target (iv) during the one year period prior to the filing of the complaint in this matter through the date of class certification. (Doc. # 34 at 1).

The Parties filed a notice of class action settlement (Doc. # 49) and, on January 28, 2011, the parties filed a joint motion for approval of the settlement. (Doc. # 52). The Court preliminarily approved the settlement on February 3, 2011, and held a final fairness hearing on May 20, 2011. (Doc. # 53). Pursuant to the settlement, Defendants created a $10,000 Class Fund and also agreed to pay Plaintiff Arlozynski $1,000 in statutory damages and $2,000 for his services as the Class Representative. (Doc. # 60 at 6-7).

During the final fairness hearing, the parties indicated that they planned to resolve the matter of Plaintiff's attorneys fees without Court intervention. The Court issued an Order approving the class action settlement on June 3, 2011, and, as to attorneys' fees, noted:

Pursuant to the Settlement Agreement, Class Counsel is entitled to an award of their reasonable fees and costs from Defendants, which is over and above, and separate from, the Class Fund. Counsel for the parties have agreed to work in good faith to agree upon that amount. In the event that the parties do not reach an agreement as to a reasonable amount of attorneys' fees and costs, Class Counsel shall petition the Court for an award within 60 days of the date of this Order. (Doc. # 60 at 7).

Unable to agree upon attorneys' fees, Plaintiff filed a Motion requesting $51,142.55 in attorneys' fees and costs on August 1, 2011. (Doc. # 63). The undersigned referred the Motion to Judge Porcelli, and he filed his Report and Recommendation on November 21, 2011.

III. The Report and Recommendation and Objection

Judge Porcelli recommends that Plaintiff's counsel be awarded $33,959.70 in attorneys' fees and $510.05 in costs. He arrived at that figure by (1) reducing attorney Bragg's hourly rate from $480 to $350; (2) excising 8.55 unnecessary hours from attorney Bragg's time; and (3) reducing the lodestar amount by 10%. Plaintiff filed a timely Objection to the Report and Recommendation to which Defendants have responded. Plaintiff does not object to the reduction in attorney Bragg's hourly rate or hours reasonably expended. Rather, Plaintiff objects to the 10% reduction of the lodestar.

Prior to the 10% reduction, the lodestar was $37,733. Plaintiff requests that this Court award that amount. Defendants, on the other hand, assert that the $3,773 reduction of the lodestar was reasonable in light of "the small settlement amount and [because] the attorneys' fees claimed . . . came ...


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