United States District Court, D. Arizona
G. Campbell United States District Judge.
Kristi Bray has filed a motion for attorneys' fees
pursuant to 15 U.S.C. § 1692k(a)(3), A.R.S. §
33-420(c), and Defendants' offer of judgment. Doc. 27.
The motion is fully briefed, and no party has requested oral
argument. Docs. 29, 31. The Court will grant the motion in
part and award Plaintiff fees in the amount of $11, 009.75.
filed this case in February 2017 alleging that Defendant
Maxwell & Morgan, P.C. (“M&M”) and two of
its attorneys violated the Fair Debt Collection Practices Act
(“FDCPA”) and an Arizona wrongful lien statute,
A.R.S. § 33-420(C), in attempting to collect payment
from Bray on behalf of a homeowner's association. Doc. 1.
Defendants made two offers of judgment under Rule 68, and
Plaintiff accepted the second offer on August, 1, 2017. Doc.
24. Pursuant to the offer of judgment, Plaintiff is entitled
to damages of $2, 566.98, release of the lien from her
property, and “all attorneys' fees and costs that
were reasonably incurred by Plaintiff through the date of
acceptance of the offer in connection with this case.”
Doc. 24-1 at 3. After judgment was entered, the parties were
unable to agree on a reasonable amount of fees. See
Doc. 27 at 12. Plaintiff therefore filed this motion,
requesting a fee award of $16, 232.50. Doc. 27.
Plaintiff's motion is supported by affidavits from lead
counsel Jonathan Dessaules and local attorney Kevin Harper,
as well as a 2016 Economics in Law Practice in Arizona
report. See Doc. 27 at 14-17, 30-31, 33. Plaintiff
also submits her engagement agreement with counsel and
counsel's task-based itemized statement of fees.
Id. at 19-28.
requesting an award of attorneys' fees must show that it
is (a) eligible for an award, (b) entitled to an award, and
(c) requesting a reasonable amount. See LRCiv
54.2(c). Defendants' offer of judgment provides for
attorneys' fees. See Doc. 24-1. Additionally,
pursuant to both the FDCPA and state law, Plaintiff is
entitled to reasonable attorneys' fees. See 15
U.S.C. § 1692k(a)(3); A.R.S. § 33-420(C); see
also Camacho v. Bridgeport Fin., Inc., 523 F.3d 973, 978
(9th Cir. 2008) (“The FDCPA's statutory language
makes an award of fees mandatory.”). Defendants do not
dispute that Plaintiff is entitled to attorneys' fees,
but contend that the hourly rates sought by Plaintiff's
attorneys are too high and the amount of time for which they
seek compensation should be reduced. Doc. 29.
determine the reasonableness of requested attorneys'
fees, federal courts generally use the “lodestar”
method. See Hensley v. Eckerhart, 461 U.S. 424, 437
(1983); United States v. $186, 416.00 in U.S.
Currency, 642 F.3d 753, 755 (9th Cir. 2011). The Court
must first determine the initial lodestar figure by taking a
reasonable hourly rate and multiplying it by the number of
hours reasonably expended on the litigation.
Hensley, 461 U.S. at 433. In determining whether the
hourly rate or hours expended are reasonable, the Court
should consider the Kerr factors that have been
subsumed within the initial lodestar calculation. See
Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 70 (9th
Cir. 1975); Cunningham v. City of L.A., 879 F.2d
481, 487 (9th Cir. 1988). These factors are: “(1) the
novelty and complexity of the issues, (2) the special skill
and experience of counsel, (3) the quality of representation,
and (4) the results obtained.” Jordan v. Multnomah
Cty., 815 F.2d 1258, 1262 n.6 (9th Cir. 1987).
was represented in this action by attorneys Jonathan
Dessaules and Douglas Wigley. Mr. Dessaules spent 4.7 hours
on the litigation at the rate of $325 per hour, which equates
to $1, 527.50. Mr. Wigley's total fee is $14, 600, based
on the 58.4 hours he worked on the case at the hourly rate of
$250. Counsel also employed a paralegal, Jenna Pitchel, who
spent 1.4 hours on the litigation at the rate of $75 per
hour, which equates to $105. Counsel avow that the time spent
was necessary to the successful outcome of the litigation,
and that they made every effort to avoid duplicative work,
including striking certain time entries. Doc. 27 at 16.
Counsel began working on this case in September 2016, filed
the complaint in February 2017, and accepted the second offer
of judgment in August 2017. See Doc. 27 at 25-28.
The judgment awards Plaintiff her actual damages, maximum
statutory damages, and the injunctive relief she sought.
hourly rates are not determined by the rates actually charged
in a case, but “by the rate prevailing in the community
for similar work performed by attorneys of comparable skill,
experience, and reputation.” Schwarz v. Sec'y
of Health & Human Servs., 73 F.3d 895, 908 (9th Cir.
1995). Mr. Dessaules and Mr. Wigley have been practicing law
for approximately 20 and 8 years respectively. Doc. 27 at 3.
Plaintiff submits an affidavit from Mr. Dessaules avowing
that their respective rates of $325 and $250 are reasonable
for attorneys of comparable skill, experience, and reputation
in the community. Doc. 27 at 15. Plaintiff's counsel
states that the rates are particularly reasonable in light of
the contingent nature of their arrangement with Plaintiff and
the associated risk. Id. Plaintiff also submits an
affidavit from a local attorney who is familiar with Mr.
Dessaules's work and prevailing rates in the community,
averring that $325 is a reasonable rate for Mr. Dessaules.
Id. at 30-31. Finally, Plaintiff submits her
engagement agreement, which contains these rates, and a 2016
Economics of Law Practice in Arizona report, which lists a
mean hourly rate of $288 and a median of $299 for the
“litigation/civil practice: plaintiff” category.
Doc. 27 at 19-23, 33.
assert that the hourly rates charged by Mr. Dessaules and Mr.
Wigley are out of line with those prevailing in the community
for attorneys of comparable skill and reputation. Doc. 29 at
13. Defendants rely on the $288 mean rate contained in the
2016 report and argue that there is “no basis for
awarding Mr. Dessaules more than the mean rate, ” and
“a seventh year associate [Mr. Wigley] should charge
much less than the average of all plaintiffs' attorneys
in the state.” Doc. 29 at 14. Defendants argue that
their rates should be reduced to $288 and $200 respectively.
parties cite various competing cases, including two cases
from this Court involving fee requests from Mr. Dessaules and
Mr. Wigley. Compare Easter v. Maxwell & Morgan
P.C., No. 16-CV-00192-PHX-SRB, Doc. 33 at 2-5 (D. Ariz.
Feb. 24, 2017) (finding the respective rates of $325 and $250
for Mr. Dessaules and Mr. Wigley to be reasonable in a
similar FDCPA action), with Ryan v. Am. Inst. of Tech.,
Inc., No. 2:10-CV-00979 JWS, 2011 WL 995940, at *2 (D.
Ariz. Mar. 21, 2011) (finding that a combined average hourly
rate of $200 for Mr. Dessaules, Mr. Wigley, a paralegal, and
a legal assistant was reasonable in an FLSA collective
action). Plaintiff has adequately supported her assertion
that the rates of $325 and $250 are reasonable in the
community based on counsel's skill, experience, and
reputation. An attorney with 20 years of experience could
reasonably charge a rate higher than the average, and
Defendants provide no evidence to support their assertion
that an attorney with eight years of experience must charge
well below the average. Other than Defendants' bare
assertions that the rates are unreasonable and unexplained
proposed reductions, Defendants have presented no evidence
tending to show that the rates are unreasonable.