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Castro v. Capital One Services, LLC

United States District Court, M.D. Florida, Tampa Division

December 15, 2017

ELSA CASTRO and NICK TOSTO, Plaintiffs,
v.
CAPITAL ONE SERVICES, LLC, a foreign limited liability company, et al., Defendants.

          REPORT AND RECOMMENDATION

          THOMAS G. WILSON, UNITED STATES MAGISTRATE JUDGE.

         The defendants, Legal Prevention Services, LLC, and Walden Asset Management, LLC, were found, by default, to have violated the Florida Consumer Collection Practices Act, the Fair Debt Collection Practices Act, and the Telephone Consumer Protection Act, while attempting to collect from the plaintiffs an alleged debt (Doc. 46; see Doc. 1). Consequently, the plaintiffs were awarded damages (Doc. 48).[1] The court retained jurisdiction over a motion for attorneys' fees and costs (see id.). The plaintiff has filed a Motion to Tax Attorneys' Fees and Costs as to Defendants Legal Prevention Services, LLC and Walden Asset Management, LLC and Incorporated Memorandum of Law (Doc. 50). The motion was referred to me for a report and recommendation (see Dkt. Entry, 9/1/2017). Having considered the materials submitted and the governing legal standards, I recommend that the plaintiffs be awarded $3, 661.75 in attorneys' fees and $425.79 in costs against defendant Walden Asset Management, LLC. I further recommend that the plaintiffs be awarded $4, 476.25 in attorneys' fees and $228.28 in costs against defendant Legal Prevention Services, LLC.

         I.

         The plaintiffs, Elsa Castro and Nick Tosto, sued Legal Prevention Services, LLC ("LPS"), and Walden Asset Management, LLC ("Walden"), and other defendants, asserting various claims including the claims that the defendants violated the Florida Consumer Collection Practices Act ("FCCPA"), Fla. Stat. § 559.55 et seq., the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692 et seq., and the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. § 227 et seq. The basis for the law suit was that the defendants without the plaintiffs' consent on various occasions, called the plaintiffs' cellular phones in an attempt to collect a debt from plaintiff Castro by using an automatic telephone dialing system, a predictive telephone dialing system, or an artificial pre-recorded voice (id.).

         Although service was executed on the defendants, they did not answer the complaint. Consequently, on June 23, 2016, the clerk entered defaults against the defendants (Docs. 19, 21). The court awarded the plaintiffs statutory damages under the FDCPA, FCCPA, and the TCPA (Doc. 46). Thereafter, judgment was entered in favor of the plaintiffs and against the defendants with the court reserving jurisdiction over the matter of attorneys' fees and costs (Doc. 48).

         The plaintiffs then timely filed this motion for attorneys' fees and costs (Doc. 50). The plaintiffs seek an award of $3, 661.75 for attorneys' fees, and costs totaling $425.79 against defendant Walden (Doc. 50). The plaintiffs also seek an award of $4, 476.25 for attorneys' fees, and costs totaling $228.28 against defendant LPS (Doc. 50). The motion is supported by the attorneys' time records and affidavits, and lists for costs (see Doc. 50-1). As indicated, the motion was referred to me for a report and recommendation (see Dkt. Entry, 9/1/2017). The defendants, who were served with this motion (see Doc. 50, p. 9), have not filed a response.

         II.

         Plaintiffs' counsel seeks an award of attorneys' fees pursuant to the FDCPA and FCCPA (Doc. 50), which contain provisions that render a debt collector liable to a successful plaintiff for reasonable attorneys' fees and court costs. 15 U.S.C. 1692k(a)(3); Fla. Stat. § 559.77(2).[2] Based on the judgment entered in the plaintiffs' favor (Doc. 48), they are successful plaintiffs who are entitled to reasonable attorneys' fees pursuant to the FDCPA and FCCPA. See Buckhannon Bd. and Care Home. Inc. v. West Virginia Dept. of Health and Human Resources, 532 U.S. 598, 603 (2001). Thus, the only question addressed here is the amount of those fees and costs.

         The FDCPA and FCCPA direct that successful plaintiffs be awarded a "reasonable" attorney's fee. The federal lodestar approach is recognized as the foundation for setting reasonable fee awards pursuant to the FDCPA and FCCPA. See Moton v. Nathan & Nathan, P.C., 297 Fed.Appx. 930.931 -32 (11th Cir. 2008); Dish Network Service L.L.C. v. Myers, 87 So.3d 72, 77 (Fla. App. 2012). This method requires the court to determine a "lodestar figure" by multiplying a reasonable hourly rate for the services of the prevailing party's attorney by the number of hours reasonably expended on the litigation. Norman v. The Housing Authority of the City of Montgomery, 836 F.2d 1292, 1299 (11th Cir. 1988).[3] The fee applicant bears the burden of presenting satisfactory evidence to establish that the requested rate is in accord with the prevailing market rate and that the hours are reasonable, Id. at 1299, 1303. Once the lodestar is determined, the court must consider whether an adjustment of the lodestar for the results obtained is appropriate. Moton v. Nathan & Nathan. P.C., supra, 297 Fed.Appx. at 932.

         As indicated, the plaintiffs argue that the court should award them attorneys' fees of $3, 661.75 against defendant Walden, and $4, 476.25 in attorneys' fees against defendant LPS (Doc. 50).

         A. HOURLY RATES

         Federal courts must determine a reasonable hourly rate for the services of the prevailing party's attorney. "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 v. The Housing Authority of the City of Montgomery, supra, 836 F.2d at 1299. The fee applicant bears the burden of "supplying the court with specific and detailed evidence from which the court can determine the reasonable hourly rate." Id. at 1303. Evidence of prevailing rates for comparable services can be adduced either through direct evidence of charges by lawyers under similar circumstances or by opinion, Id. at 1299. "[T]he best information available to the court is usually a range of fees set by the market place." Id. at 1301. Furthermore, "[t]he court... is itself an expert on the question [of attorneys' fees] and may consider its own knowledge and experience concerning reasonable and proper fees." Id. at 1303.

         The plaintiffs were represented in this matter by attorney Aaron M. Swift and other attorneys from the law firm of Leavengood, Dauval, Boyle & Meyer, P.A. (Doc. 50-1, p. 2). Attorney Swift was counsel that was primarily responsible for the case (id.). Swift requests fees based on hourly rates ranging from $100 to $300 (see id., pp. 13-67).

         Considering my knowledge of prevailing market rates in Tampa and the specifics of this case, including the defendants' lack of opposition, a reasonable hourly rate for this case ranges from $100 to $300. See Norman v. The Housing Authority of the City of Montgomery, supra, 836 F.2d at 1303 (the court is itself an expert). Indeed, taking into consideration the number of hours expended on this matter and the lack of opposition, the ...


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