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Bray v. Maxwell & Morgan PC

United States District Court, D. Arizona

November 27, 2017

Kristi Bray, an individual, Plaintiff,
Maxwell & Morgan PC, an Arizona professional corporation, et al., Defendants.


          David G. Campbell United States District Judge.

         Plaintiff 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.

         I. Background.

         Bray 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.

         II. Legal Standard.

         A party 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.

         To 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).

         III. Analysis.

         Plaintiff 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.

         A. Hourly Rates.

         Reasonable 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.

         Defendants 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. Id.

         The 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.

         B. ...

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